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Content updated: 07-09-2020 16:03

The Constitutional Court: a new Government may be re-empowered only by means of a resolution of the Seimas on assenting to the programme of the Government

28-08-2020

By its ruling passed today, the Constitutional Court has recognised that the legal regulation laid down in Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas (wording of 22 December 1998), governing the re-empowerment of the Government when more than half of the ministers are replaced, insofar as, under the said legal regulation, in the event no amendments are made to the programme of the Government, a draft resolution of the Seimas on assenting to the programme of the Government is not submitted to the Seimas, and the Government is re-empowered not by adopting, by the Seimas, a resolution on assenting to the programme of the Government, is contrary to Paragraphs 2 and 3 of Article 5, Item 7 of Article 67, Paragraph 5 of Article 92, and Paragraph 2 of Article 101 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law.

The Constitutional Court also recognised that the resolution (No XIII-2412) of the Seimas of 20 August 2019 (written down in the minutes) on the re-empowerment of the Government of the Republic of Lithuania is contrary to Paragraphs 2 and 3 of Article 5, Item 7 of Article 67, Paragraph 5 of Article 92, and Paragraph 2 of Article 101 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law.

This ruling of the Constitutional Court will be officially published in the Register of Legal Acts on 23 December 2020. This means that the current Government may act until this date provided that its powers are not terminated earlier on the grounds established in the Constitution.

A group of members of the Seimas, the petitioner, has applied to the Constitutional Court after having doubts as to whether the Constitution was violated after the Government in which more than half of the ministers were replaced had been re-empowered by means of a resolution of the Seimas written down in the minutes on the basis of the Government’s programme assented to by the resolution of the Seimas referred to in the said resolution of the Seimas written down in the minutes, thus avoiding a new vote of assent over the programme of the Government. Moreover, according to the petitioner, the Government had been re-empowered by means of an inappropriate legal act. The petitioner also considered that the legal regulation, laid down in Article 198 of the Statute of the Seimas, under which the Government in which more than half of the ministers are replaced may be re-empowered where the Seimas votes not on assent over the programme of the Government, but on the re-empowerment of the Government.

The provisions of the Constitution and the official constitutional doctrine

The Constitutional Court has held that the provisions of Article 1 of the Constitution, as well as the principle of a state under the rule of law, which is entrenched in the Constitution, determine the main principles of the organisation and operation of the authorities of the State of Lithuania. The provision of Article 1 of the Constitution that the State of Lithuania is democratic means that the state must ensure the supremacy of the Constitution, the democratic decision-making process, political pluralism, as well as the separation and balance of powers.

The Constitution enshrines parliamentary democracy, in which the Seimas performs the classical functions of the parliament of a democratic state under the rule of law, among other things, passes laws (the legislative function), exercises parliamentary control over the executive and other state institutions (except courts) (the control function). It should be noted that, under the Constitution, the Seimas exercises parliamentary control over the Government. The Constitution also enshrines pluralistic parliamentary democracy, under which political pluralism is secured in the parliament of a democratic state under the rule of law.

On the basis of the competence of state institutions as established by the Constitution, the model of government of the State of Lithuania should be categorised as a parliamentary republican form of government; this is reflected by the powers of the Seimas, those of the Head of State – the President of the Republic, and those of the Government, as well as by the legal arrangement of their reciprocal interaction; in the Lithuanian constitutional system, the principle of the responsibility of the Government to the Seimas is established, which determines the manner of forming the Government. In this case, the activities of the Government are based on the confidence of the parliament; for its policies, the Government is accountable to the parliament.

Thus, the Constitution establishes the principle of the responsibility of the Government to the Seimas. This principle and the respective powers of the Seimas to exercise parliamentary control over the Government are to be interpreted in the light of the above-mentioned parliamentary republican form of government, which is established in the Constitution, the concept of pluralist parliamentary democracy, which is enshrined in the Constitution, and the requirement, arising from Paragraphs 2 and 3 (under which the scope of power is limited by the Constitution and state institutions serve the people) of Article 5 of the Constitution and the constitutional principles of responsible governance and a state under the rule of law, that the Seimas must properly implement the constitutional powers of supervision over the Government, including through the adoption of lawful and reasonable legal acts. The constitutional principle of the responsibility of the Government to the Seimas is reflected in the provisions of Item 7 of Article 67, Paragraph 5 of Article 92, and Paragraph 2 of Article 101 of the Constitution, which are relevant to this case and which regulate the granting of powers (among others, the granting of powers once again) to the Government.

Interpreting the provisions of Item 7 (which enshrines the powers of the Seimas to consider the programme of the Government, presented by the Prime Minister, and decide whether to give its assent to it) of Article 67 and of Paragraph 5 (under which a new Government receives the powers to act after the Seimas gives assent to its programme by a majority vote of the members of the Seimas participating in the sitting) of Article 92 of the Constitution, the Constitutional Court noted that the regulation governing the granting of powers to the Government enshrined therein reflects the particularities of parliamentary pluralist democracy and expresses one of the most important features of a parliamentary republic – the confidence of the Seimas as the basis for the powers of the Government. Such confidence of the Seimas is expressed in the Government in corpore, i.e. by giving assent not to the personal composition of the Government, but to its programme, which sets out the provisions of the programme of the Government – guidelines for the activities of the state over a certain period based on the provisions of the programme of the political forces that won the elections (the majority of the Seimas). Such assent to the programme of the Government is possible only after the Seimas duly considers it in a spirit of political pluralism and if there is support by the majority of the Seimas for the provisions of the programme of the Government. According to Item 7 of Article 67 and Paragraph 5 of Article 92 of the Constitution, powers may be granted to the Government in the sole way – once the Seimas assents to the programme of the Government.

Paragraph 2 (“When more than half of the Ministers are replaced, the Government must once again receive its powers from the Seimas. Otherwise, the Government must resign”) of Article 101 of the Constitution establishes the institution of re-empowering the Government when more than half of the ministers are replaced. It should be noted that the institution of re-empowerment is one of the forms of parliamentary supervision over the Government. The reason for re-empowering the Government is a substantial change in its composition – more than half of the ministers – which requires the Seimas to verify whether the Government whose composition changes substantially can implement its programme, which has been assented to by the Seimas. Thus, the replacement of individual ministers, i.e. a non-substantial change in the composition of the Government until more than half of the ministers are replaced, does not, under the Constitution, constitute grounds for doubting the ability of the Government to carry out its programme.

According to Paragraph 2 of Article 101 of the Constitution, the Government with a substantially changed composition must not return its powers to the President of the Republic, but must receive them again as an expression of the confidence of the Seimas. Thus, the institution, entrenched in Paragraph 2 of Article 101 of the Constitution, of the re-empowerment of the Government differs fundamentally from the institution of the return of the powers of the Government, which is entrenched in Paragraph 4 of Article 92 of the Constitution, which provides that the Government returns its powers to the President of the Republic after the election of the Seimas or after the election of the President of the Republic. After an election of the Seimas, the Government must not only return its powers, but also resign; in this case, the Government is not re-empowered, because this Government resigns when a new Government is formed. After an election of the President of the Republic, the Government returns its powers to the newly elected President of the Republic, but does not resign. In this case, according to Paragraph 4 of Article 92 of the Constitution, the Government is deemed to have received again powers to act after the Seimas assents to the nomination of the Prime Minister of the Government and not to the programme of the Government, as the confidence of the Seimas in the Government expressed previously after the assent of the Seimas to the programme of this Government remains, i.e. there is no constitutional basis for the Seimas to verify whether the Government can continue to implement the programme to which it has assented. Such a constitutional basis is established only in Paragraph 2 of Article 101 of the Constitution and is not related to an election of the President of the Republic, but to the said substantial change – more than half of the ministers – in the composition of the Government, which may occur not exclusively after an election of the President of the Republic.

Further interpreting Paragraph 2 of Article 101 of the Constitution, the Constitutional Court emphasised that, according to the Constitution, the Seimas does not resolve issues of the personal composition of the Government, as the appointment of ministers is the prerogative of the Prime Minister and the President of the Republic. Therefore, according to Paragraph 2 of Article 101 of the Constitution, the only way for the Seimas to express confidence in the Government in corpore with a substantially changed composition (when more than half of the ministers are replaced) is to assent to the programme of the Government after due consideration. Only in this way can the Seimas verify, in accordance with Paragraph 2 of Article 101 of the Constitution, whether the Government with a substantially changed composition can carry out its programme. It should be noted that the re-empowerment of the Government when more than half of the ministers are replaced provides an opportunity to assess the implementation of the programme of the Government and make necessary changes thereto, taking into account the implemented programme provisions and the evolution of the state and society. Among other things, changes in the programme of the Government may be related to the fact that more than half of the ministers are replaced following a partial change of the political forces forming the Government and therefore there could be a need to integrate into the programme of the Government the programme provisions of the new political forces.

Consequently, under Paragraph 2 of Article 101 of the Constitution, when more than half of the ministers are replaced, the procedure of the re-empowerment of the Government must not be a mere formality: the Government must receive the powers once again when the Seimas adopts a decision to assent to the programme of the Government. A different interpretation of Paragraph 2 of Article 101 of the Constitution, according to which the Seimas may purportedly re-empower the Government without reconsidering its programme provisions and without assenting to its programme would be incompatible with the requirement, arising from Paragraphs 2 and 3 of Article 5 of the Constitution and from the constitutional principles of responsible governance and a state under the rule of law, that the Seimas must properly implement the constitutional powers of supervision over the Government, as well as incompatible with the pluralistic parliamentary democracy concept, which is enshrined in the Constitution and which presupposes political pluralism in the parliament of a democratic state under the rule of law.

The Constitutional Court has also held that a resolution of the Seimas is a legal act adopted by the Seimas as the legislature authorised under the Constitution, among other things, under Articles 67 and 70 thereof, to regulate, by means of laws and other legal acts, the most important social relations. In the hierarchy of legal acts, a resolution of the Seimas has the force of a substatutory legal act. Such a concept of a resolution of the Seimas implies that it deals with the most important state governance issues that are assigned to the competence of the Seimas under the Constitution and laws and that do not require a legal regulation established by law, but where resolving those issues gives rise to legal consequences, including rights and obligations, for other persons. Taking this into account, the Constitutional Court concluded that, in resolving all issues of state governance assigned to it under the Constitution and laws, where the regulation of the said issues does not require the adoption of laws and where resolving those issues gives rise to legal consequences for other persons, the Seimas must adopt resolutions of the Seimas, although the relevant provisions of the Constitution do not explicitly specify the form of the act to be adopted by the Seimas. Thus, according to the Constitution, the resolutions of the Seimas that are written down in the minutes of a sitting of the Seimas must not deal with such state governance issues assigned to the Seimas under the Constitution and laws where the regulation of the said issues does not require the adoption of laws and where resolving those issues gives rise to legal consequences for other persons. The Constitutional Court also noted that one of the democratic principles of the adoption of decisions in the Seimas is the principle of majority – the decisions of the Seimas reflect the political will of the majority of the members of the Seimas. In accordance with this principle, Paragraph 2 of Article 69 of the Constitution also applies to the resolutions of the Seimas dealing with the issues of state governance assigned to the Seimas under the Constitution and laws; therefore, the adoption of such resolutions requires a majority of the votes of the members of the Seimas participating in the sitting (unless the Constitution explicitly specifies another majority necessary for the adoption of the relevant decision of the Seimas). Based on these arguments, the Constitutional Court drew the conclusion that by re-empowering the Government in accordance with Paragraph 2 of Article 101 of the Constitution when more than half of the ministers are replaced, the Seimas must adopt a resolution of the Seimas assenting to the programme of the Government by a majority of the votes of the members of the Seimas participating in its sitting.

The assessment of the compliance of Article 198 of the Statute of the Seimas (wording of 22 December 1998) with the Constitution

In deciding on the constitutionality of the legal regulation enshrined in Article 198 of the Statute of the Seimas, the Constitutional Court summed up, from the point relevant to this constitutional justice case, the legal regulation provided for in Article 198 of the Statute of the Seimas and the related legal regulation governing the re-empowerment of the Government when more than half of the ministers are replaced. According to this legal regulation:

– seeking the re-empowerment of the Government when more than half of the ministers are replaced, the Prime Minister must in all cases present to the Seimas a newly appointed minister (or ministers) whose appointment as a minister (or ministers) in the Government headed by that Prime Minister resulted in the fact that half of the total number of ministers was exceeded (Article 198 of the Statute of the Seimas), and a draft resolution of the Seimas on assenting to the amended programme of the Government must be submitted only in the event that amendments are made to the programme of the Government (Paragraph 2 of Article 198 of the Statute of the Seimas, Paragraph 4 of this article read in conjunction with Paragraph 3 of Article 194);

– if no amendments to the programme of the Government are made, after the discussion held after the presentation of the newly appointed minister (or ministers), the Seimas may vote on the re-empowerment of the Government and take a corresponding decision (Paragraph 5 of Article 198 of the Statute of the Seimas) or, after deciding to refer the matter to committees and political groups, vote on the re-empowerment of the Government and take a corresponding decision after having received the conclusions from the committees and political groups of the Seimas, and after holding a discussion and hearing an additional report of the Prime Minister (Paragraph 6 of Article 198 of the Statute of the Seimas); Paragraphs 5 and 6 of Article 198 of the Statute of the Seimas do not specify the form and content of a legal act of the Seimas that formalises a decision of the Seimas on the re-empowerment of the Government when more than half of the ministers are replaced in the event no amendments are made to the programme of the Government;

– in the event amendments are made to the programme of the Government, a draft resolution of the Seimas on assenting to the amended programme of the Government is submitted at a sitting of the Seimas and is debated in the committees and political groups of the Seimas by applying the procedure for submitting a programme of the Government at a sitting of the Seimas and debating it in the committees and political groups of the Seimas, as laid down in Articles 194 and 195 of the Statute of the Seimas (Paragraph 4 of Article 198 of the Statute of the Seimas); the Seimas votes on the draft resolution of the Seimas on assenting to the amended programme of the Government after the conclusions of the committees and political groups of the Seimas are submitted, a discussion is held at the sitting of the Seimas, and an additional report of the Prime Minister is heard, and once such a resolution has been adopted, the Government is deemed to have been granted powers once again (Paragraph 6 (read in conjunction with Paragraph 4 of Article 198, Paragraph 3 of Article 194, and taking into account Paragraph 3 of Article 197 of the Statute of the Seimas) of Article 198 of the Statute of the Seimas). 

Thus, under the legal regulation governing the re-empowerment of the Government when more than half of the ministers are replaced, established in Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas, only in such a case where amendments are made to the programme of the Government, a draft resolution of the Seimas on assenting to the amended programme of the Government is submitted to the Seimas, and powers are granted to the Government once again when the Seimas adopts a resolution on assenting to the programme of the Government.

Consequently, under the legal regulation governing the re-empowerment of the Government when more than half of the ministers are replaced, as established in Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas, in such a case where no amendments are made to the programme of the Government, a draft resolution of the Seimas on assenting to the amended programme of the Government is not submitted to the Seimas, and powers are not granted to the Government once again when the Seimas adopts a resolution on assenting to the programme of the Government. The Constitutional Court noted that, under such legal regulation, when granting powers to the Government once again, its programme provisions are not reconsidered and re-evaluated, and a decision on the re-empowerment of the Government may be formalised by means of a legal act of any form and content.

Taking this into account, the Constitutional Court drew the conclusion that the legal regulation, laid down in Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas, governing the re-empowerment of the Government when more than half of the ministers are replaced, insofar as, under that legal regulation, in the event no amendments are made to the programme of the Government, a draft resolution of the Seimas on assenting to the programme of the Government is not submitted to the Seimas, and the Government is re-empowered not by adopting, by the Seimas, a resolution on assenting to the programme of the Government, does not comply with the requirements, arising from Paragraph 2 of Article 101 of the Constitution read in conjunction with Item 7 of Article 67 and Paragraph 5 of Article 92 thereof, that the Government must be re-empowered when more than half of the ministers are replaced where the Seimas assents, after due consideration, to the programme of the Government by adopting a resolution of the Seimas on assenting to the programme of the Government by a majority vote of the members of the Seimas participating in the sitting, nor does it comply with the requirement, arising from Paragraphs 2 and 3 of Article 5 of the Constitution and the constitutional principles of responsible governance and a state under the rule of law, that the Seimas must properly implement the constitutional powers of supervision over the Government.

The assessment of the compliance of the resolution of the Seimas of 20 August 2019 entered into the minutes with the Constitution

The Constitutional Court noted that the resolution of the Seimas of 20 August 2019 entered into the minutes, which expresses the decision of the Seimas to grant powers to the Government once again when more than half of the ministers are replaced is, according to its content, a decision to grant powers to the Government to continue to act on the basis of the unchanged programme of the Government, i.e. the Government’s programme assented to by the Seimas by means of its resolution of 13 December 2016. In addition, the resolution of the Seimas of 20 August 2019 written down in the minutes was adopted in accordance with the procedure laid down in Paragraph 5 of Article 198 of the Statute of the Seimas, following a discussion after the presentation of the newly appointed members of the Government, when the Seimas decided to vote on granting powers to the Government without referring this matter to the committees and political groups of the Seimas (i.e. such vote was a mere formality, without due consideration of the programme of the Government); the said resolution was also formalised as a resolution of the Seimas written down in the minutes of the sitting of the Seimas, adopted pursuant to Paragraph 2 of Article 113 of the Statute of the Seimas, under which such a resolution may be adopted by a majority of the votes of the members of the Seimas who voted in the sitting or by consensus.

Therefore, the resolution of the Seimas of 20 August 2019 written down in the minutes does not constitute a decision to assent to the programme of the Government after due consideration, i.e. after assessing the implementation of the programme of the Government and the need to make changes to the programme of the Government in the light of implemented programme provisions and of the evolution of the state and society, as well as to integrate into the programme of the Government the programme provisions of the new political forces that have joined the majority of the Seimas. In addition, the Government was re-empowered not by means of a resolution of the Seimas, but by means of a resolution written down in the minutes of the sitting of the Seimas.

In the light of all this, the Constitutional Court drew the conclusion that the resolution of the Seimas of 20 August 2019 written down in the minutes, in terms of its content, form, and procedure of adoption, does not meet the requirements, arising from Paragraph 2 of Article 101 of the Constitution read in conjunction with Item 7 of Article 67 and Paragraph 5 of Article 92 thereof, that, when more than half of the ministers are replaced, the Government must be re-empowered by assenting by the Seimas to the programme of the Government after due consideration and by adopting a resolution of the Seimas on assenting to the programme of the Government by a majority of the votes of the members of the Seimas participating in the sitting of the Seimas. At the same time, the resolution of the Seimas of 20 August 2019 written down in the minutes disregarded the requirement, arising from Paragraphs 2 and 3 of Article 5 of the Constitution and the constitutional principles of responsible governance and a state under the rule of law, that the Seimas must properly implement the constitutional powers of supervision over the Government.

On the official publication of this ruling and the ensuing legal consequences

The Constitutional Court ensures the supremacy of the Constitution in the legal system and administers constitutional justice. The concept of constitutional justice, which stems from the Constitution, implies not a perfunctory and nominal constitutional justice, but such final acts of the Constitutional Court that are not unjust according to their content. Otherwise, without creating the possibility for the Constitutional Court to adopt, in accordance with the powers conferred upon it, such a final act that would meet the criteria of justice, the supremacy of the Constitution in the legal system would not be guaranteed and the administration of constitutional justice and the ensuring of constitutional legality would be prevented. The powers of the Constitutional Court to administer constitutional justice and to ensure constitutional legality are inseparable from the imperatives of the constitutional principle of a state under the rule of law, among other things, from the requirements of the protection of legitimate expectations, legal security, legal certainty, justice, and reasonableness.

This ruling of the Constitutional Court has recognised unconstitutional Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas, which regulate the re-empowerment of the Government when more than half of the ministers are replaced; in addition, this ruling has also recognised unconstitutional the resolution of the Seimas of 20 August 2019 written down in the minutes, which was adopted in accordance with the said article of the Statute of the Seimas and by which the Seimas re-empowered the Government.

Under Paragraph 1 of Article 107 of the Constitution, a legal act may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question is in conflict with the Constitution. As the Constitutional Court has repeatedly stated, any legal act adopted by the Seimas that is declared by a ruling of the Constitutional Court to be in conflict with the Constitution is removed from the legal system of Lithuania and may no longer be applied.

However, under the Constitution, the Constitutional Court, having assessed the legal situation that may arise after the entry into force of a ruling of the Constitutional Court, enjoys the constitutional powers to establish also a later date of the official publishing (thus, also of the entry into force) of its ruling, whereby a certain legal act was recognised as being in conflict with the Constitution, where, in the case the ruling of the Constitutional Court after its adoption were immediately officially published, a vacuum or other indeterminacies might appear in the legal regulation due to which certain values consolidated in and defended and protected by the Constitution could be violated in essence.

According to the Constitution and the Law on the Constitutional Court, after the official publication of this ruling of the Constitutional Court, from the day of its official publication, the resolution of the Seimas of 20 August 2019 written down in the minutes by which the Seimas granted powers to the Government once again will not be applicable and will be removed from the legal system.

Therefore, if the ruling of the Constitutional Court in this constitutional justice case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, the Government, whose programme was assented to by the resolution of the Seimas of 13 December 2016 and to which powers to act were re-granted by the resolution of the Seimas of 20 August 2019 written down in the minutes would lose the powers to continue to act. In other words, in the Republic of Lithuania, there would be no Government empowered to act under the Constitution, nor a Government entrusted, under the Constitution, with office at least temporarily, which would fundamentally disrupt state governance and which could have adverse effects on society and the state, and on the rights and freedoms of people. 

The Constitutional Court held that the Constitution does not allow a situation in which the Government as a collegial executive authority ensuring the functioning of the state and continuously implementing state governance does not operate in the state, i.e. a situation in which either the Government authorised to act under the Constitution or the Government entrusted, under the Constitution, with office at least on a temporary basis does not operate.

Thus, in order to avoid such a situation that is not possible under the Constitution when there is no Government under the Constitution operating in the state and in order to ensure the continuity of its activities as an exclusive executive authority, the Government whose programme was assented to by the resolution of the Seimas of 13 December 2016 and to which powers to act were re-granted by the resolution of the Seimas of 20 August 2019 written down in the minutes should be allowed a certain period of time for receiving powers once again. Paying regard to the requirements of legal certainty, justice, and reasonableness, which arise from the constitutional principle of a state under the rule of law, such a period of time should be sufficient to assess whether, taking into account all significant circumstances and the rest of the term of office of the Government, it is necessary to make changes to its programme and also to consider the programme of the Government in the Seimas.

Taking into account the arguments set forth, this ruling of the Constitutional Court will be officially published in the Register of Legal Acts on 23 December 2020.

The Constitutional Court has noted that Paragraph 1 of Article 107 of the Constitution gives rise to the presumption of the constitutionality of legal acts and of the lawfulness of the consequences of their application: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a legal act may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question is in conflict with the Constitution, means that, as long as the Constitutional Court has not officially published the decision that a certain legal act is in conflict with the Constitution, it is presumed that such a legal act is in compliance with the Constitution and that the legal consequences that have appeared on the basis of the act in question are lawful.

The Constitutional Court stressed that the presumption of the lawfulness of the legal consequences resulting from the resolution of the Seimas of 20 August 2019 written down in the minutes, which was found to be contrary to the Constitution, is not negated. Consequently, the fact that it was held in this ruling of the Constitutional Court that the resolution of the Seimas of 20 August 2019 written down in the minutes is in conflict with the Constitution does not in itself provide grounds for contesting the constitutionality of the acts adopted by the Government that has received powers once again by means of the said resolution written down in the minutes.

The Constitutional Court also noted that the Seimas has a constitutional obligation to amend the legal regulation laid down in Paragraphs 2 and 4–6 of Article 198 of the Statute of the Seimas in such a way that it is in line with the Constitution, i.e. that, in all cases when more than half of the ministers are replaced, the Government would be re-empowered by adopting a resolution of the Seimas on assenting to the programme of the Government.