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On dismissing a case

Case No. 5/94

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

D E C I S I O N

On the dismissal of the case “On the compliance of Articles 10 and 11 of the Republic of Lithuania’s Law on Presidential Elections with the Constitution of the Republic of Lithuania”

11 July 1994, Vilnius

The Constitutional Court of the Republic of Lithuania, composed from the Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys

The court reporter—Sigutė Brusovienė

Andrius Kubilius, a member of the Seimas, acting as the representative of a group of members of the Seimas, the petitioner

Albinas Lozuraitis, a member of the Seimas, and the lawyer Grigorijus Fišas, acting as the representatives of the Seimas, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in the public court hearing, on 8 July 1994, considered case No. 5/94 subsequent to the petition submitted to the Court by a group of Seimas members requesting an investigation into Articles 10 and 11 of the Republic of Lithuania’s Law on Presidential Elections, adopted 22 December 1992, are consistent with the provision of Item 13 of Article 67 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 22 December 1992, the Seimas of the Republic of Lithuania adopted the Law on Presidential Elections (Official Gazette Valstybės žinios, 1993, No. 2-29, No. 3-52, No. 4-78). Article 10 of said Law prescribes that elections of the President of the Republic of Lithuania shall be organised and conducted by: 1) the Electoral Commission for Elections of the President of the Republic; 2) the town and district electoral commissions; and 3) the electoral commissions of polling districts. Meanwhile, Paragraphs 1 and 2 of Article 11 provide that “the Electoral Commission for Elections of the President of the Republic shall be the supreme institution for the organisation of elections of the President of the Republic. The Electoral Commission for Elections of the President shall be made up by the Seimas at least 45 days prior to the election day”.

A group of members of the Seimas, the petitioner, request that the Constitutional Court examine the conformity of the provisions of Article 10 and 11 of the Law on Presidential Elections, concerning the formation of the Electoral Commission for Elections of the President of the Republic, with the provision of Item 13 of Article 67 of the Constitution of the Republic of Lithuania.

The petitioner’s request is based on the following arguments.

On 9 July 1992, the Supreme Council of the Republic of Lithuania adopted the Law on Elections to the Seimas of the Republic of Lithuania Article 12 of which reads: “The Central Electoral Commission shall be the supreme institution for the organisation of elections.” On 23 July of that year of the Central Electoral Commission was formed.

In Article 5 of the Constitution it is determined: “In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and Government, and the Judiciary. The scope of powers shall be defined by the Constitution”. “Herefrom the conclusion is drawn that: the Seimas of the Republic of Lithuania has only those powers which are stipulated in Article 67 of the Constitution of the Republic of Lithuania”.

The petitioner maintains that “Item 13 of Article 67 of the Constitution of the Republic of Lithuania runs that the Seimas of the Republic of Lithuania shall form the Central Electoral Commission and change its composition. This constitutional provision clearly specifies that there may be only one supreme institution in the Republic of Lithuania for the organisation of any elections and this institution shall be formed by the Seimas of the Republic of Lithuania. As it has already been mentioned, such Central Electoral Commission was set up on 23 July 1992 and was functioning at the moment when the Law on Presidential Elections was adopted Article 10 and 11 of which prescribed that the Electoral Commission for Elections of the President of the Republic should be made up by the Seimas. Such a commission was formed on the resolution of the Seimas on 29 December 1992.”

Conforming to the above-mentioned reasoning, the petitioner requests that the Constitutional Court recognise that Articles 10 and 11 of the Law on Presidential Elections contradict the provision of Item 13 of Article 67 of the Constitution.

During the preliminary investigation of the case the representative of the party concerned explained that, in his opinion, Articles 10 and 11 of the Law on Presidential Elections were consistent with the provision of Item 13 of Article 67 of the Constitution and submitted the following arguments.

  1. The petitioner’s opinion that the constitutional provision concerning the Central Electoral Commission clearly specifies that there may be only one institution in the Republic of Lithuania for the organisation of any elections, is groundless. According to the petitioners, the Central Electoral Commission would have to organise an election of the Speaker, deputy Speakers, the Chancellor of the Seimas as well as chairpersons of the municipal councils and all the other elective officials. However, the Central Electoral Commission is not the supreme institution for the organisation of any elections.
  2. “The Law on Presidential Elections prescribes that elections of the President of the Republic shall be organised and conducted by the Electoral Commission for Elections of the President of the Republic, town and district electoral commissions and the electoral commissions of polling districts that are formed by the Electoral Commission for Elections of the President of the Republic (Article 10). The only electoral commission set up for the whole country would not be able to organise and conduct the elections throughout the country, i.e. to hand out the ballot-papers to the electorate, to calculate the voices. The only way is to obligate the electoral commissions of lower level to organise and conduct elections according to the powers vested in them.”
  3. The Constitution also does not prescribe that the Central Electoral Commission must conduct elections of the President of the Republic. Constitutional reference to the Seimas’ right to form the Central Electoral Commission and change its composition is included in the Chapter “The Seimas” of the Constitution. “This proves that the Central Electoral Commission shall doubtlessly be the supreme institution for the organisation of elections to the Seimas.”
  4. In the opinion of the representative of the party concerned, it was necessary to form a separate Electoral Commission for Elections of the President of the Republic also due to the following circumstances:

“1) The Central Electoral Commission was formed by the Supreme Council of Lithuania prior to the enforcement of the Constitution of the Republic of Lithuania. Consequently, it was not formed by the Seimas of the Republic of Lithuania as the Constitution requires;

2) The Seimas of the Republic of Lithuania acknowledged that it was necessary to form the supreme institution for the organisation of elections of the President of Lithuania according to different regulations, as it had done the Supreme Council of the Republic of Lithuania while setting up the Central Electoral Commission;

3) The Seimas of the Republic of Lithuania could not change at that time the composition of the Central Electoral Commission formed by the Supreme Council of the Republic of Lithuania. During the adoption of the Law on Presidential Elections, the Central Electoral Commission participated, as a party concerned, in the cases considered by the Supreme Court pertaining to the drawing up of the records of the vote calculation of the election to the Seimas. The changing of the composition of the Central Electoral Commission until the completion of the consideration of these cases would contradict the provisions of Article 5 of the Constitution of the Republic of Lithuania, as it would be interference by the Seimas with the activity of the court.”

  1. 5. “The Constitution of the Republic of Lithuania establishes only the formation of the Central Electoral Commission, however it does not regulate its powers. The competence of the Central Electoral Commission is determined in the Law on Elections to the Seimas. Said Law does not prescribe that the Central Electoral Commission shall also conduct elections of the President of the Republic. The Constitution entitles the Seimas to the right to enact laws. The Seimas in laws may establish norms that are in conformity to the Constitution. Thus, the Constitution does not prohibit the Seimas to authorise another commission to organise elections of the President of the Republic. Therefore, the Seimas, having called the election of the President of the Republic, formed a separate institution for the organisation and conduction of that election—the Electoral Commission for Elections of the President of the Republic. This right of the Seimas is stipulated in Items 2, 4, and 5 of Article 67 of the Constitution.”

Conforming to these arguments, the representative of the party concerned requests that the Constitutional Court recognise that Articles 10 and 11 of the Law on Presidential Elections are in compliance with the provision of Item 13 of Article 67 of the Constitution.

The Constitutional Court

holds that:

  1. The nation shall exercise the sovereign power directly through two main organisational forms: national elections and referendums. The principles of their organisation and the most important conditions are established in constitutional norms, and the procedure of their conduction is regulated by appropriate laws. The legal basis for said forms of democracy are Articles 2 and 4 of the Constitution as well as the citizens’ suffrage (Articles 33, 34, Constitution).

The 1992 Constitution provides for 3 types of national elections: elections to the Seimas, elections of the President of the Republic and elections to municipal councils.

The principles of elections to the Seimas, requirements for the candidates to Seimas members, the date for the conduction of elections, cases of pre-term elections to the Seimas and the procedure for their organisation are established in Chapter V of the Constitution.

Chapter VI of the Constitution determines the main principles of elections of the President of the Republic, the requirements for the candidates to the post of the President of the Republic, the procedure for their nomination, the date for the conduction of election and the essential rules for the establishment of election results (Articles 78–81), also cases of pre-term elections of the President of the Republic (Articles 87, 88), as well as the procedure for calling a new election of the President of the Republic (Article 89).

Finally, Chapter X of the Constitution prescribes democratic principles for elections to municipal councils and defines the term for the implementation of their powers (Article 119).

The main provisions of referendum—a form of direct democracy—are formulated in Article 9 of the Constitution which sets forth that “the most significant issues concerning the life of the State and the Nation shall be decided by referendum.” The procedure for the calling and conduct of a referendum shall be established by law.

These provisions have also been supplemented with the constitutional norms which regulate legislation. In Article 69 of the Constitution it is established that: “Provisions of the laws of the Republic of Lithuania may also be adopted by referendum.” Chapter XIV of the Constitution specifies the constitutional provisions that may be amended only by referendum (Article 148).

The above-mentioned constitutional norms which establish the institutes of democracy and principles of their functioning are particularised by law. Legislation is the exclusive prerogative of the Seimas which is limited only by constitutional norms. Therefore, the Seimas, while regulating the procedure of the functioning of institutes of democracy, is obliged by the following constitutional norms:

  1. a) the Seimas’ powers established in Article 67 are as follows:

“3) the Seimas shall adopt resolutions for the organisation of referendums;

4) the Seimas shall call presidential elections of the Republic of Lithuania”;

“13) the Seimas shall form the Central Electoral Commission and change its composition”;

  1. b) Article 84 determines these powers of the President of the Republic:

“20) the President of the Republic shall call regular elections to the Seimas, and, in cases set forth in Paragraph 2 of Article 58 of the Constitution, call pre-term elections to the Seimas.”

  1. On July 1992 the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania’s Law on Elections to the Seimas. Article 10 of this Law establishes: “Elections to the Seimas shall be organised and conducted by: 1) the Central Electoral Commission; 2) the electoral commissions of electoral areas; and 3) the electoral commissions of polling districts.” The procedure of the formation of said commissions and the underlying goals are specified in Articles 12, 13 and 14 of the above-mentioned Law. For example, Article 12 determines that “the Central Electoral Commission shall be the Supreme institution for the organisation of elections”, which “<...> shall supervise the implementation of this law, shall ensure that it is applied uniformly <...>”.

A separate Law (of 7 December 1989) has regulated the procedure for organisation and conduction of elections to municipal councils. Article 18 of this Law set forth the following:

“For the organisation and conduct of elections to the local councils of people’s deputies the following electoral commissions shall be formed:

The electoral commission of the Republic for elections of deputies to local councils of people’s deputies;

the regional electoral commissions for elections of deputies to regional councils of people’s deputies;

the town electoral commissions for elections of deputies to town councils of people’s deputies;

the rural electoral commissions for elections to the rural councils of people’s deputies;

district electoral commissions for elections of deputies to district councils of people’s deputies;

electoral commissions of polling districts.”

In Article 14 of the 1989 Law on Referendums it is established that for the organisation and conduct of a referendum in the Republic the following commissions shall be formed from among the citizens of the Republic of Lithuania:

“1) the Referendum commission of the Republic;

2) the town and district referendum commissions;

3) referendum commissions of polling districts”;

The contents and pattern of the Republic of Lithuania’s Law on Presidential Elections were influenced by the tradition of legal regulation which existed in the period of the restoration of the State, when the procedure for elections to separate state institutions was regulated by individual laws that were not directly related among themselves. It should not be ignored that the contents of said Law was also affected by the fact that the election of the President of Lithuania had to be organised within comparatively short period of time, because Article 89 of the Constitution establishing that an election for the President of the Republic “must be held within two months” and Article 6 of the Law on the Procedure for the Enforcement of the Constitution of the Republic of Lithuania entitling the Seimas to the right to prolong the term provided in Article 89 “for a period not exceeding four months” were already in force at that time.

Thus, on 22 December 1992 the Seimas adopted the Law on Presidential Elections. Article 10 thereof prescribes that elections of the President of the Republic shall be organised and conducted by : 1) the Electoral Commission for Elections of the President of the Republic; 2) the town and district electoral commissions; and 3) the electoral commissions of polling districts. Furthermore, in Article 11 of said Law it is established that “the Electoral Commission for Elections of the President of the Republic shall be the supreme institution for the organisation of elections of the President of the Republic. The Electoral Commission for Elections of the President of the Republic shall be made up by the Seimas at least 45 days prior to the election day.”

  1. Up to now, the elections to various state institutions to be formed through national elections have been conducted according to separate laws meant for the formation of a specific institution, which prescribed that separate electoral commissions should be set up for the formation of specific institutions. Such practice does not entirely conform to the constitutional provision that the Seimas “shall form the Central Electoral Commission and change its composition”. Taking into consideration that this provision is formulated in Article 67, in which the most important powers of the Seimas are defined, also that only one concrete institution for the organisation of elections is mentioned in this Article, the conclusion is to be drawn that, under said provision, only one uniform and universal institution for the organisation of elections—the Central Electoral Commission—must be formed. However, said constitutional provision has not been realised yet. Although, judging from the name, the Central Electoral Commission set up for elections to the Seimas could take the place of the above-mentioned universal commission, but in fact it may not be considered as such because: 1) it does not have the powers indispensable for the universal commission; 2) it was formed not in the procedure prescribed by the Constitution (it was made in 1992 by the Supreme Council and not by the Seimas; even the Central Electoral Commission which was formed by the Seimas on 25 March 1993 has not become universal as it was not granted the appropriate functions of such commission and further remained a special commission for elections to the Seimas). Due to the above-mentioned circumstances, other commissions set up for elections to other state institutions could not have the status of the Central Electoral Commission either, the more so that some of them, for instance the Electoral Commission for Elections of the President of the Republic, stopped their functioning after the election.

The constitutional provision pertaining to the uniform Central Electoral Commission should be realised only by legal establishment of its purpose in accordance with other constitutional provisions, of principles of formation and competence and, having co-ordinated other laws on elections with these provisions, by the formation of such universal Central Electoral Commission in the procedure prescribed by law. Until all this is done, the norm established in Article 3 of the Law “On the Procedure for the Enforcement of the Constitution of the Republic of Lithuania” specifying that “provisions of the laws of the Republic of Lithuania which determine the status of the supreme institutions of State power and administration of the Republic of Lithuania as well as the status of deputies and municipal councils shall be effective until the elected Seimas decides otherwise” is binding.

However, the present legal situation is to be interpreted as ambiguous, as under this situation there remains a collision between said laws on elections which is preconditioned by the circumstance that the uniform supreme electoral institution has not been formed and its status has not been regulated yet. As this collision may not be resolved without special legal regulation, this legal situation is to be interpreted as a legal gap.

The Constitutional Court does not resolve issues concerning legal gaps. This is a prerogative of the legislature. Therefore, the Constitutional Court holds that this case is to be dismissed.

Conforming to item 2 of Paragraph 1 of Article 69 as well as Paragraph 3 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To dismiss the initiated legal proceedings of case “On the compliance of Articles 10 and 11 of the Law on Presidential Elections with the Constitution of the Republic of Lithuania”.

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

Teodora Staugaitienė                       Stasys Šedbaras                               Juozas Žilys