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On elections to the Seimas

Case No. 26/08

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 15 APRIL 2008) OF THE REPUBLIC OF LITHUANIA’S LAW ON ELECTIONS TO THE SEIMAS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

1 October 2008
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Pranas Žukauskas, senior advisor of 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 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 29 September 2008, considered constitutional justice case No. 26/08 subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraph 1 (wording of 15 April 2008) of Article 37 of the Republic of Lithuania’s Law on Elections to the Seimas (wording of 18 July 2000), to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by a party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Supreme Administrative Court of Lithuania, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000), to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by a party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution.

II

The petition of the Supreme Administrative Court of Lithuania, the petitioner, is grounded on the following arguments.

1. On the basis of the official constitutional doctrine formulated in the jurisprudence of the Constitutional Court, the petitioner maintains that the legislature, by establishing, by means of a law, the procedure for elections of the members of the Seimas, inter alia, the procedure for nominating candidates for the members of the Seimas, must not deny, distort or restrict the universal, equal and direct suffrage, which is consolidated in Paragraph 1 of Article 55 of the Constitution, and create any legal preconditions for other legal subjects to do so. According to the petitioner, one of the electoral rights of a citizen—the right to offer candidates for the members of the Seimas—must also meet the principles of universal, equal and direct elections.

The impugned legal regulation which prescribes that in the multi-member constituency, only political parties have the right to nominate candidates for the members of the Seimas, in the opinion of the petitioner, violates these principles of the electoral right because the citizens which are not members of a political party may nominate candidates for the members of the Seimas only in single-member constituencies, i.e. for 71 places of members of the Seimas. Such legal regulation, in the opinion of the petitioner, most likely is not in compliance with the principles of the universal, equal and direct suffrage and could be in conflict with Paragraph 1 of Article 34 and Paragraph 1 of Article 55 of the Constitution.

2. In its ruling of 9 February 2007, the Constitutional Court has also held that Paragraph 2 of Article 35 of the Constitution consolidates “the constitutional guarantee that protects a person from belonging to any political party against his will also means that the person may not be directly or indirectly compelled to become related to any political party by any relations that are other than formal membership”. According to the petitioner, the impugned legal regulation when only political parties may nominate candidates for members of the Seimas in the multi-member constituency from a certain viewpoint compels the citizens to formally or informally connect themselves with parties, since only through political parties they could realise their electoral right—nominate candidates for the members of the Seimas in the multi-member constituency—and violates Paragraph 2 of Article 35 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Seimas, the party concerned, who was P. Žukauskas, senior advisor of the Law Department of the Office of the Seimas, in which it is maintained that the impugned provision of Paragraph 1 of Article 37 of the Law on Elections to the Seimas is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution. The position of the representative of the Seimas, the party concerned, is based on the following arguments.

1. On the grounds of an analysis of the provisions of the Constitution, the legislature enjoys the competence to regulate, by means of a law, the procedure of the election to the Seimas: the system of elections of members of the Seimas, the basis for organising elections, the nomination of candidates and other questions of elections to the Seimas. The Constitution does not establish any requirements for the legislature to choose one or another electoral system. It needs to be noted that the legislature has chosen a mixed system of elections to the Seimas, where 71 members of the Seimas is elected according to a majoritarian electoral system in single-member constituencies and the citizens who meet the requirements of the Constitution and laws may nominate themselves for these places of members of the Seimas, and, thus, it does not prevent the citizens who are not connected with parties to enjoy their passive electoral right and does not restrict their possibilities of doing so. In addition, the Law on Elections to the Seimas does not prescribe that the parties may nominate only those who are their members as candidates.

2. The effective legal regulation which regulates the procedure of elections to the Seimas, creates the possibility for persons to enjoy their passive electoral right without belonging to political parties, i.e. to nominate themselves as candidates. Citizens, when they implement their passive electoral right during elections to the Seimas, are not forced to connect themselves with any political party, therefore, there is no ground to state that the impugned provision of the Law on Elections to the Seimas is in conflict with Paragraph 2 of Article 35 of the Constitution.

IV

At the Constitutional Court’s hearing, P. Žukauskas, the representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations.

The Constitutional Court

holds that:

I

1. On 9 July 1992, the Seimas adopted the Law on Elections to the Seimas.

Article 30 titled “Nomination of Candidates for the members of the Seimas in Single-Member and Multi-Member Constituencies” of this law (wording of 9 July 1992) prescribed:

Political parties which have been registered for the election according to the Law on Political Parties no later than 35 days prior to the election, as well as political organisations whose effective statutes providing reference to their political character and the amendments thereto have been registered with the Ministry of Justice no later than 2 months prior to the election, shall have the right to nominate candidates for the members of the Seimas in single-member and multi-member constituencies, provided their participation in the election is supported by no less than 1,000 voters’ signatures.

Individual persons may nominate themselves for the members of the Seimas in single-member constituencies, provided their candidature is supported in writing by no less than 1,000 voters of that constituency.

Political parties and political organisations or their coalitions shall nominate their candidates in the multi-member constituency by presenting lists of candidates. The list must not include less than 20 candidates.”

2. The Law on Elections to the Seimas (wording of 9 July 1992) has been amended and/or supplemented more than once.

On 16 March 1993, the Seimas adopted the Republic of Lithuania’s Law on a Partial Amendment and Supplementing of the Law on Elections to the Seimas, in Article 2 whereof it decided to change the words “public political movement” into the words “political organisation”.

Thus, the right to nominate candidates to the members of the Seimas was granted to political organisations while public political movements lost this right. These amendments of the Law on Elections to the Seimas (wording of 9 July 1992) were determined by the aim of the legislature to harmonise the notions used in it with those used in the Constitution, inter alia, the notions “political parties” and “political organisations” used in Paragraph 3 of Article 35 thereof.

3. On 27 June 1996, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to the Seimas, Article 1 whereof set forth the Law on Elections to the Seimas (wording of 9 July 1992 with subsequent amendments and supplements) in its new wording. The Law on Elections to the Seimas (wording of 27 June 1996) came into force on 2 July 1996 (save the exception specified in it).

Article 37 titled “Nomination of Candidates for the members of the Seimas” of the Law on Elections to the Seimas (wording of 27 June 1996) established the following:

The following may nominate candidates for members of the Seimas:

(1) in single-member constituencies and the multi-member constituency—the party or political organisation which have been registered pursuant to the Law on Political Parties and Political Organisations no later than 65 days prior to the election;

(2) in a single-member constituency—every citizen of the Republic of Lithuania who qualifies to be elected as a member of the Seimas, may nominate himself for a member of the Seimas, provided his candidature is supported by signatures of no less than 1,000 voters of that constituency.

In the multi-member constituency parties and political organisations shall nominate their candidates by presenting a list of candidates in which candidates are recorded in such succession as established by the party or political organisations. Unless the statutes of a party or political organisation provide otherwise, candidates in single-member constituencies and the list of the candidates, recorded in succession, in the multi-member constituency must be approved at the congress or conference of the party or political organisation. The list of candidates must not include less than 20 and more than 120 candidates.”

Thus, Paragraph 1 of Article 37 of the Law on Elections to the Seimas (wording of 27 June 1996) establishes the condition for the parties or political organisations seeking to participate in the elections to the Seimas to be registered pursuant to the Law on Political Parties and Political Organisations no later than 65 days prior to the election.

4. The Law on Elections to the Seimas (wording of 27 June 1996) has been amended and/or supplemented more than once, however, Article 37 was not amended or supplemented.

5. On 18 July 2000, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Elections to the Seimas, Article 1 whereof set forth the Law on Elections to the Seimas (wording of 27 June 1996 with subsequent amendments and supplements) in its new wording. The Law on Elections to the Seimas (wording of 18 July 2000) came into force on 19 July 2000.

Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000) established the following:

Candidates for members of the Seimas may be nominated by:

(1) in single-member constituencies or the multi-member constituency—a party registered pursuant to the Law on Political Parties and Political Organisations no later than 65 days prior to the election;

(2) in a single-member constituency—every citizen of the Republic of Lithuania who qualifies to be elected as a member of the Seimas, may nominate himself for a member of the Seimas, provided his candidature is supported by signatures of no less than 1,000 voters of that constituency.

In the multi-member constituency parties shall nominate their candidates by presenting a list of candidates in which candidates are recorded in the succession established by the party. Unless the statutes of a party provide otherwise, candidates in single-member constituencies and the list of the candidates, recorded in succession, in the multi-member constituency must be approved at the congress or conference of the party. The list of candidates (joint list) must not include less than 25 and more than 141 candidates.”

After the Law on Elections to the Seimas has been set forth in its new wording of 18 July 2000, Paragraph 2 of Article 7 of this law was also amended, in which it was prescribed that “meetings and voting of electoral commissions shall be open and may be observed by representatives and observers of political parties and political organisations (hereinafter—parties), and candidates for members of the Seimas”. Therefore, the notion “party” used in Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000) also included political parties and political organisations.

6. The Law on Elections to the Seimas (wording of 18 July 2000) has also been amended and/or supplemented more than once, inter alia, by the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 51, 6, 7, 15, 16, 18, 21, 22, 23, 25, 31, 34, 37, 38, 39, 41, 51, 61, 65, 67, 671, 72, 74, 78, 82, 90 and 91 of the Law on Elections to the Seimas which came into force on 30 April 2008.

Article 37 titled “Nomination of Candidates for the members of the Seimas” of the Law on Elections to the Seimas (wording of 15 April 2008) provides:

Candidates for Seimas members may be nominated:

(1) no later than 65 days prior to the election, in single-member constituencies or the multi-member constituency—by a party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties;

2) in a single-member constituency—by every citizen of the Republic of Lithuania who qualifies to be elected as a member of the Seimas, may nominate himself for a member of the Seimas, provided his candidature is supported by signatures of no less than 1,000 voters of that constituency.

In the multi-member constituency parties shall nominate their candidates by presenting a list of candidates in which candidates are recorded in the succession established by the party. Unless the statutes of a party provide otherwise, candidates in single-member constituencies and the list of the candidates, recorded in succession, in the multi-member constituency must be approved at the congress or conference of the party. The list of candidates (joint list) must not include less than 25 and more than 141 candidates.”

It needs to be noted that Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000), which established the requirements for the parties which may nominate candidates for the members of the Seimas, consolidated additional requirements that the number of the members of a party must meet the requirements of the Law on Political Parties. It also needs to be noted that after Paragraph 2 of Article 7 of the Law on Elections to the Seimas was amended by the said Law on Amending and Supplementing Articles 2, 51, 6, 7, 15, 16, 18, 21, 22, 23, 25, 31, 34, 37, 38, 39, 41, 51, 61, 65, 67, 671, 72, 74, 78, 82, 90 and 91 of the Law on Elections to the Seimas, which was adopted on 15 April 2008, after the words “political organisations” were deleted from it, the right to nominate candidates for the members of the Seimas was reserved only to political parties which meet the requirements established in the Law on Political Parties.

7. Article 1 of the Law on Elections to the Seimas (wording of 18 July 2000) prescribed, inter alia, that members of the Seimas shall be elected in single-member constituencies and the multi-member constituency according to a mixed electoral system, while Article 9 (wording of 20 June 2002) of the same law prescribed, inter alia, that for the organisation and conduct of elections, the territory of the Republic of Lithuania shall be divided into 71 single-member constituencies, also that one multi-member constituency shall be formed where all citizens of the Republic of Lithuania eligible to vote shall cast their votes.

8. While construing Paragraph 1 (wording of 18 April 2008) (whose compliance with the Constitution, to a certain extent, is impugned by the petitioner) of Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000) in the context of the whole legal regulation established in this law, it should be held that the legislature established a mixed electoral system, i.e. such a system of elections of the members of the Seimas, where 70 members of the Seimas are elected in the multi-member constituency according to a proportional electoral system only from the candidates which are included into the lists of political parties, while 71 members of the Seimas are elected according to the majoritarian system in single-member constituencies, in which not only the citizens nominated by political parties may be candidates, but also the citizens who nominate themselves if they meet the requirements (conditions) of the passive electoral right established in the Law on Elections to the Seimas. Therefore, by the legal regulation consolidated in Paragraph 1 of Article 37 of the Law on Elections to the Seimas, a citizen, who seeks to become a member of the Seimas and who is not directly or indirectly connected with any party and who meets the requirements of the law, is not deprived of the opportunity to nominate himself as a candidate to the members of the Seimas.

It needs to be noted that a mixed electoral system has been consolidated in the Law on Elections to the Seimas as from the coming into force of its very first wording—that of 9 July 1992.

It also needs to be noted that a mixed electoral system is also applied for the elections of parliaments of various European democratic countries (the Federal Republic of Germany, the Republic of Hungary, the Republic of Italy, etc.).

II

1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000), to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by a party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution.

2. Paragraph 1 of Article 34 of the Constitution provides that citizens who, on the day of election, have reached 18 years of age, shall have the electoral right, Paragraph 2 of the same article provides that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by the election laws, and Paragraph 3 of the same article provides that citizens who are recognised incapable by a court shall not participate in elections.

Paragraph 1 of Article 35 of the Constitution provides that citizens shall be guaranteed the right to freely form societies, political parties and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws, Paragraph 2 of the same article provides that no one may be compelled to belong to any society, political party, or association and Paragraph 3 of the same article provides that the founding and activities of political parties and other political and public organisations shall be regulated by law.

Paragraph 1 of Article 55 of the Constitution provides that members of the Seimas who shall be elected for a four-year term on the basis of universal, equal, and direct suffrage by secret ballot, Paragraph 2 of the same article provides that the Seimas shall be deemed elected when not less than 3/5 of the members of the Seimas have been elected and Paragraph 3 of the same article provides that the procedure for election of members of the Seimas shall be established by law.

Article 34 and Article 55 of the Constitution consolidate certain constitutional imperatives of the legal regulation of electoral relations, inter alia, elections to the Seimas. The imperatives of the legal regulation of electoral relations are also consolidated in other articles of the Constitution, inter alia, Articles 56, 57, 58, 78, 79, 81 and 119 thereof.

3. In this context, it needs to be noted that the provisions of the official constitutional doctrine of elections have been formulated and developed in various acts of the Constitutional Court adopted in former constitutional justice cases, inter alia, in the Constitutional Court’s conclusions of 23 November 1996 and 5 November 2004 regarding the petitions of the President of the Republic whether the laws on elections to the Seimas were not violated, while in the aspect of elections of municipal councils—the Constitutional Court’s Ruling “On the Compliance of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Republic of Lithuania’s Law on Elections to Municipal Councils with the Constitution of the Republic of Lithuania” of 9 February 2007.

4. Article 2 of the Constitution provides that sovereignty shall belong to the Nation. The Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives (Article 4 of the Constitution). Paragraph 1 of Article 33 of the Constitution prescribes, inter alia, that citizens shall have the right to participate in the governance of their state both directly and through their democratically elected representatives. One of fundamental characteristics of a democratic state is a democratic election of representative institutions of state power. It is through elections that every citizen accomplishes his right to participate in running his country along with the other citizens (the Constitutional Court’s conclusion of 23 November 1996), in the formation of the Seimas—the institution representing the Nation.

It needs to be noted that when emphasising the importance of elections of the represented institutions, the Constitutional Court has held that in a constitutional democracy, special requirements are raised to the formation of political representative institutions. These institutions may not be formed in a way so that doubts might arise as to their legitimacy and legality, inter alia, as to the fact whether the principles of a democratic state under the rule of law were not violated in the course of election of persons to political representative institutions. Otherwise, people’s trust in the representative democracy, state institutions, and the state itself, would be undermined. Democratic elections are an important form of citizens’ participation in the governing of the state, as well as it is a necessary element of the formation of state political representative institutions. Elections may not be regarded as democratic, nor their results as legitimate and legal, if the elections are held by trampling on the principles of democratic elections established in the Constitution, and by violating democratic electoral procedures (the Constitutional Court’s conclusion of 5 November 2004). While consolidating the provisions of the electoral right by means of a law, the legislature is obliged to follow these imperatives of legal regulation which are consolidated in the Constitution.

5. The provision of Article 34 of the Constitution that citizens who, on the day of election, have reached 18 years of age, shall have the electoral right (Paragraph 1) consolidates the so-called active electoral right, i.e. the possibility of persons to participate in the elections to the corresponding institutions of public power by freely choosing for which of the nominated candidate or which candidates to vote. The provision of Paragraph 2 of this article that the right to be elected shall be established by the Constitution of the Republic of Lithuania and by means of election laws consolidates the so-called passive electoral right, i.e. the opportunity for a person to nominate himself for the members of the corresponding elected institution of public power under procedure established by the Constitution and laws, therefore, the opportunity to seek to be elected. Paragraph 3 of Article 34 of the Constitution establishes a restriction for the active and passive electoral right—persons who are recognised incapable by a court shall not have this right.

All the provisions of Article 34 of the Constitution are interrelated. In the context of the constitutional justice case at issue, while construing the provision of Paragraph 1 of Article 34 together with Paragraphs 2 and 3 of Article 34, it needs to be noted that citizens who, on the day of election, have reached 18 years of age and who are not recognised incapable by a court shall have the right to elect only those persons as members of the corresponding institutions of public power, who meet the requirements (conditions) of the Constitution and the laws which not in conflict with the Constitution.

6. In this context it needs to be noted that the articles of the Constitution which regulate the relations of elections to the corresponding institutions of public power, i.e. Articles 55, 56 and 57 of the Constitution, consolidating the legal imperatives of elections of the members of the Seimas, Articles 78, 79 and 80 thereof, consolidating the legal imperatives of elections of the President of the Republic, and Article 119 of the Constitution, consolidating the legal imperatives of elections of the members to municipal councils, are inseparable from the provisions of Article 34 of the Constitution which consolidate the constitutional grounds for the active and passive electoral rights.

It also needs to be noted that even though the constitutional nature of the said institutions of public power, their place in the system of institutions of public power, their functions and empowerments determine the specific legal regulation of elections of each of these institutions, the legislature, while regulating the legal relations of elections of members of the Seimas, President of the Republic and members of municipal councils, must heed the imperatives of the universal, equal and direct suffrage and secret ballot which stem from the Constitution.

7. The duty stems for the legislature from the Constitution, inter alia, from Articles 34, 55 and 56 thereof, to consolidate, by means of a law, a system of elections of members of the Seimas, to establish the grounds and procedure of arrangement of elections, inter alia, including the nomination of candidates for the members of the Seimas, electoral campaigning, the procedure of voting, the establishment of the results of election, the procedures of settling electoral disputes, as well as the regulation of other relations of election of members of the Seimas. In this context, it needs to be emphasised that, while establishing the requirements which must be met by the candidate for the members of the Seimas, the legislature must heed the Constitution; it may neither itself deny, distort or limit the universal, equal and direct suffrage and secret ballot, nor may it create any legal preconditions for others to do that.

8. It needs to be noted that in Member States of the European Union and in other democratic states, while regulating the relations of elections, one quite often also establishes special requirements, upon fulfilment (meeting) of which, a person may nominate himself as a candidate for members of the parliament, for example, the requirement to collect a certain number of signatures which confirm the political support of a certain part of society, or the requirement to pay a certain deposit of elections. Elections are a responsible political process, therefore, the requirement that candidates for members of parliament prove to have a certain political support of society and/or guarantee the validity of their intentions by a certain (reasonable) financial obligation, is recognised as valid one.

9. It has been mentioned that the petitioner doubts whether the impugned legal regulation meets the principles of the universal, equal and direct suffrage and secret ballot which are consolidated in Paragraph 1 of Article 55 of the Constitution. These principles of the electoral right, as well as the principle of secret ballot, are established not only in Paragraph 1 of Article 55 of the Constitution, but also in other articles of the Constitution which regulate the legal relations of elections of the President of the Republic (Paragraph 2 of Article 78) and members of municipal councils (Paragraph 2 of Article 119). First of all, these principles are applicable in the implementation of the active electoral right.

The principle of universal electoral right which is consolidated in Paragraph 1 of Article 55 of the Constitution means that the right to participate in the elections of members of the Seimas must be ensured for all the citizens of the Republic of Lithuania who meet the requirements (conditions) which stem from the Constitution and the laws which are not in conflict with the Constitution.

When construing the principle of equal electoral right, it is universally recognised that it means, inter alia, that while organising and conducting elections, all the voters must be treated equally, the vote of each voter is of the same value as the vote of any other voter and has equal meaning while establishing the results of the voting.

The principle of direct electoral right requires that members of the Seimas would be elected without agents. While construing the content of this principle, it needs to be noted that the Constitutional Court has held that the legislature, while regulating electoral relations, may not establish any such legal regulation which would create preconditions so that another person votes for the voter (except when the voter is unable to implement his such constitutional right by himself due to the state of his health) (the Constitutional Court’s conclusion of 5 November 2004).

The principle of secret ballot requires to create such conditions for expressing the will of a voter during the voting that nobody could control him, exert influence on his choice or impede him otherwise to express his will freely and unrestrictedly.

10. In the context of the constitutional justice case at issue, it needs also to be noted that the Constitution does not establish a concrete system of elections of members of the Seimas. According to the provision of Paragraph 3 of Article 55 of the Constitution, this is left to be decided by the legislature that has broad discretion. It needs to be noted that by means of a law, one may establish either only a proportional, or only a majoritarian, or a different system of elections of members of the Seimas, inter alia, a mixed electoral system in which the proportional and majoritarian systems of elections are combined.

It is universally recognised that, under a proportional system of elections to the parliament, in one multi-member constituency, it is the candidates which are entered on the lists of political parties that usually (traditionally) take part; under a majoritarian system of elections to the parliament, in single-member constituencies not only individual candidates nominated by political parties, but also individual citizens who nominated themselves as candidates under procedure established by law, may be candidates.

In democratic states a so-called mixed system of elections to the parliament is known, which combines the proportional and majoritarian systems of elections and from this viewpoint creates a possibility not only for persons who are entered on the lists of the political parties, but also for individual persons who, under procedure established by law, nominated themselves or were nominated by parties, to be candidates during an election.

As such, only a proportional electoral system, or only majoritarian one, or a different electoral system, inter alia, a mixed electoral system in which proportional and majoritarian electoral systems are combined, may not be regarded as creating the preconditions for violating the requirements of free and democratic elections, the universal and equal suffrage, secret ballot and other standards of elections of a democratic state under the rule of law. However, it also needs to be noted that, while consolidating the corresponding system of elections of members of the Seimas, the legislature must heed the norms and principles of the Constitution and the constitutional notion of the Seimas as the representation of the Nation.

11. As it has been mentioned, elections are a political process. The electoral right (both active and passive) is closely related to the right of a citizen of the Republic of Lithuania to participate in the governance of his state consolidated in Article 33 of the Constitution, as well as with the right of citizens to freely form political parties, provided that the aims and activities thereof are not contrary to the Constitution and laws consolidated in Article 35 of the Constitution. It needs to be noted that the purpose of establishment of political parties and their activity are inseparable from seeking public power, therefore, also from participation in the elections to the representative institutions of public power, inter alia, the Seimas.

12. Whichever system of elections of members of the Seimas (only proportional system, only majoritarian one, or another one, inter alia, a mixed electoral system in which the proportional and majoritarian systems of elections are combined) is chosen by the legislature, under the Constitution, it is not allowed that one establish any such legal regulation which would prevent the political parties and their nominated candidates from participating in the elections of members of the Seimas. In this ruling of the Constitutional Court it has been held that, in itself, such a system of elections of members of the Seimas where the proportional and majoritarian systems of elections are combined does not create preconditions for violation of the standards of universal, equal and direct voting as well as other standards of elections of a democratic state under the rule of law.

Thus, such a system of elections of members of the Seimas where the candidates entered on the lists of political parties and the individual candidates nominated by political parties compete for the mandates of members of the Seimas is, under the Constitution, possible if one also ensures the possibility for the citizens who are not entered on the lists of political parties or not nominated by them to participate in the elections to the Seimas.

13. While regulating the relations of elections of members of the Seimas by means of a law, the legislature is bound by the Constitution, inter alia, by the requirement which stems from Paragraph 2 of its Article 35 thereof whereby “no one may be compelled to belong to any <...> political party <...>”. Therefore, under the Constitution, the legislature may not establish any such legal regulation whereby a person, who wishes to make use of his passive electoral right (Paragraph 2 of Article 34 and Article 56 of the Constitution) in election of members of the Seimas, would be compelled to become a member of any political party or to connect himself with any political party by relations other than those of formal membership.

14. Such legal regulation of elections of members of the Seimas where the candidates entered on the lists of political parties or the individual candidates nominated by them compete for the mandates of members of the Seimas at the same time ensuring the possibility for the citizens who are not entered on the lists of political parties or not nominated by them to participate in the elections to the Seimas may not be regarded as in itself deviating from the constitutional concept of elections to the Seimas, inter alia, from that consolidated in Articles 34 and 55 of the Constitution, nor may it be regarded as violating the imperative stemming from Paragraph 2 of Article 35 of the Constitution, whereby no one may be compelled to belong to any party.

15. In the context of this constitutional justice case at issue, it needs to be noted that the role of political parties has been analysed more than once also in the practice of courts of foreign states. In its judgment of 14 December 2004, while investigating the constitutionality of the Law on Political Parties, the Constitutional Tribunal of the Republic of Poland held that “the state recognises the essential function of the political parties in a democratic system—to affect the formation of the state policy. It is a public function, closely linked to the state power. The parties, being an element of the political system, are a fundamental institute of political life”. In its ruling of 15 October 1968, in the case Williams v. Rhodes, the US Supreme Court held: “The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot, and thus denied an equal opportunity to win votes.” In its decision of 27 July 2003, in the case Figueroa v. Canada, while assessing the constitutionality of the Elections Act, the Supreme Court of Canada held that “political parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. <…> the participation of political parties in the electoral process also provides individuals with the opportunity to express an opinion on governmental policy and the proper functioning of public institutions”.

III

On the compliance of Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution.

1. It has been mentioned that the Constitutional Court is requested to investigate whether Paragraph 1 of Article 37 of the Law on Elections to the Seimas, to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by the party which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution.

2. In the opinion of the Supreme Administrative Court of Lithuania, the petitioner, the impugned legal regulation prescribing that only political parties have the right to nominate candidates for members of the Seimas in the multi-member constituency violates the democratic principles of the universal, equal and direct suffrage, since the citizens who are not members of a political party may nominate candidates for members of the Seimas only in single-member constituencies.

3. In this ruling it has been mentioned that from Articles 34, 55 and 56 of the Constitution, a duty stems for the legislature to consolidate, by means of a law, a system of elections of members of the Seimas, to establish the grounds and procedure of arrangement of elections, inter alia, including the nomination of candidates to members of the Seimas, electoral campaigning, the procedure of voting, the establishment of the results of elections, the procedures of settling electoral disputes, as well as the regulation of other relations of elections of members of the Seimas.

It has been mentioned that the Constitution does not establish a concrete system of elections of members of the Seimas. According to the provision of Paragraph 3 of Article 55 of the Constitution, this is left to be decided by the legislature who has broad discretion. As such, only a proportional electoral system, or only majoritarian one, or a certain different electoral system, inter alia, a mixed electoral system in which the proportional and majoritarian electoral systems are combined, may not be regarded as creating preconditions for violating the requirements of free and democratic elections, the universal and equal suffrage, secret ballot and other standards of elections of a democratic state under the rule of law.

4. As it has already been mentioned, establishment of political parties and their activity are inseparable from seeking public power, therefore, also from participation in the elections to the representative institutions of public power, inter alia, the Seimas. Therefore, whichever system of elections of members of the Seimas (only proportional system, only majoritarian one, or another one, inter alia, a mixed electoral system in which the proportional and majoritarian electoral systems are combined) is chosen by the legislature, under the Constitution, it is not permitted that one establish any such legal regulation which would prevent the political parties and their nominated candidates from participating in the elections of members of the Seimas.

In this ruling it has been held that, under the Constitution, such a system of elections of members of the Seimas where the candidates entered on the lists of political parties and the individual candidates nominated by political parties compete for the mandates of members of the Seimas, is possible if one also ensures the possibility for the citizens who are not entered on the lists of political parties or who are not nominated by them to participate in the elections to the Seimas.

5. It has been mentioned that while regulating the relations of elections of members of the Seimas by means of a law, the legislature is bound by the Constitution, inter alia, by the requirement which stems from Paragraph 2 of Article 35 thereof that “no one may be compelled to belong to any <...> political party <...>”. Therefore, under the Constitution, the legislature must not establish any such legal regulation whereby a person, who wishes to make use of his passive electoral right (Paragraph 2 of Article 34 and Article 56 of the Constitution) in election of members of the Seimas, would be compelled to become a member of any political party or to connect himself with any political party by relations other than those of formal membership.

It has also been mentioned that such legal regulation of elections of members of the Seimas when the candidates entered on the lists of political parties or the individual candidates nominated by them compete for the mandates of members of the Seimas at the same time ensuring the possibility for the citizens who are not entered on the lists of political parties or not nominated by them to participate in the elections to the Seimas may not be regarded as in itself deviating from the constitutional concept of elections to the Seimas, inter alia, that consolidated in Articles 34 and 55 of the Constitution, nor may it be regarded as violating the imperative stemming from Paragraph 2 of Article 35 of the Constitution, whereby no one may be compelled to belong to any party.

6. It has also been mentioned that while construing Paragraph 1 (wording of 18 April 2008) (whose compliance with the Constitution, to a certain extent, is impugned by the petitioner) of Article 37 of the Law on Elections to the Seimas (wording of 18 July 2000) in the context of the whole legal regulation established in this law, it should be held that the legislature established a mixed electoral system, i.e. such a system of elections of members of the Seimas, when 70 members of the Seimas are elected in the multi-member constituency according to a proportional system of elections only from the candidates who are included into the lists of political parties, while 71 members of the Seimas are elected according to a majoritarian system in single-member constituencies, in which not only the citizens nominated by political parties may be candidates, but also the citizens who nominate themselves if they meet the requirements (conditions) of the passive electoral right established in the Law on Elections to the Seimas. Therefore, by the legal regulation consolidated in Paragraph 1 of Article 37 of the Law on Elections to the Seimas, a citizen, who seeks to become a member of the Seimas and who is not directly or indirectly bound to any party, and who meets the requirements of the law, is not deprived of the opportunity to nominate himself as a candidate to the members of the Seimas.

Therefore, by the legal regulation consolidated in Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas, to the extent that it provides that only the party which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, may nominate candidates for members of the Seimas in the multi-member constituency, one does not violate the active electoral right of citizens consolidated in Paragraph 1 of Article 34 of the Constitution, the imperative which prohibits compelling a person to belong to any political party and which is consolidated in Paragraph 2 of Article 35 of the Constitution, and one does not deviate from the democratic principles of elections to the Seimas consolidated in Paragraph 1 of Article 55 of the Constitution.

7. It needs to be noted that, in the light of all the circumstances specified here, even though the petition of the petitioner is substantiated by the Constitutional Court’s Ruling “On the Compliance of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Republic of Lithuania’s Law on Elections to Municipal Councils with the Constitution” of 9 February 2007, the legal situation considered in the constitutional justice case at issue substantially differs from the legal situation considered in the constitutional justice case subsequent to the petition in which the Supreme Administrative Court of Lithuania, the petitioner, requested an investigation into the constitutionality of the provision “only a party may nominate candidates for members of a municipal council” of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Republic of Lithuania’s Law on Elections to Municipal Councils, to the extent that it, according to the petitioner, had granted the exclusive rights to the political parties to nominate candidates for members of municipal councils, in which the Constitutional Court adopted its aforesaid ruling of 9 February 2007 and recognised that Paragraph 1 of Article 34 (wording of 21 December 2006) of the Law on Elections to Municipal Councils, to the extent that, after the legislature had chosen only the proportionate system of elections to municipal councils, it had not stipulated that permanent residents of administrative units of the territory of the Republic of Lithuania may be elected to the councils of respective municipalities even by being included into the lists of candidates to the councils of municipal councils that are drawn by entities other than political parties, was in conflict with Paragraph 2 of Article 119 of the Constitution.

Such a difference between these two legal situations is determined, inter alia, by the fact that, in the said formerly investigated constitutional justice case, the Constitutional Court investigated the provisions of the law regulating the elections to municipal councils. The Constitutional Court has more than once held that state administration and local self-government are two different systems of public power consolidated in the Constitution and they are formed and function on different constitutional grounds; while enjoying the constitutional discretion, the legislature may establish different systems of elections to the Seimas and to municipal councils. In this context, it needs to be noted that under the Law on Elections to Municipal Councils, the compliance of the provisions of which with the Constitution was investigated in the Constitutional Court’s Ruling “On the Compliance of Paragraph 1 of Article 34 (wording of 21 December 2006) of the Republic of Lithuania’s Law on Elections to Municipal Councils with the Constitution” of 9 February 2007, municipal councils are elected according to an electoral system of proportional representation in the multi-member constituency in which only the candidates entered on the lists of political parties could compete, while members of the Seimas, under the Law on Elections to the Seimas, are elected according to a mixed electoral system in the multi-member constituency and single-member constituencies, which creates the opportunity not only for single persons who are entered on the lists of candidates of the political parties or nominated by them to be candidates in an election to the Seimas, but also for individual persons who, under procedure established by law, nominated themselves as candidates.

8. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 1 (wording of 15 April 2008) of Article 37 of the Law on Elections to the Seimas to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by a political party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the Constitution.

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 Paragraph 1 (wording of 15 April 2008, Official Gazette Valstybės žinios, 2008, No. 50-1839) of Article 37 of the Republic of Lithuania’s Law on Elections to the Seimas to the extent that it provides that candidates for the members of the Seimas may be nominated in the multi-member constituency only by a party, which is registered pursuant to the Law on Political Parties and which meets the requirements regarding the number of party members, laid down in the Law on Political Parties, is not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis