THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA DECISION On the compliance of Article 25 of Chapter 5 of Part II of the Statute of the Seimas of the Republic of Lithuania with the Constitution of the Republic of Lithuania 26 November 1993, 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 secretary of the hearing - Rolanda Stimbirytė, the petitioner - Andrius Kubilius, representative of the group of the members of the Seimas, the party concerned - Juozas Bernatonis, the Seimas representative, deputy Chairman of the Seimas, pursuant to part 1 of Article 102 of the Constitution of the Republic of Lithuania and part 1 of Article 1 of Law on the Constitutional Court, in its public hearing of 25 November 1993 conducted the investigation of Case No 10, subsequent to the petition submitted to the Court by a group of the Seimas of the Republic of Lithuania members to investigate the conformity of Article 25 of Chapter 5 of Part II of the Statute of the Seimas of the Republic of Lithuania with part 4 of Article 59 of the Constitution of the Republic of Lithuania. The Constitutional Court established: The Seimas of the Republic of Lithuania on 20 May 1993 adopted Part II of the statute of the Seimas of the Republic of Lithuania called the Structure of the Seimas (Parliamentary Record No 17, 28 May 1993, Act No 1-158). It is set forth in the first and the second parts of Article 25 of Chapter 5 "Parliamentary Groups" that: "Political parties and organizations and their coalitions whose members have been elected to the Seimas from the same list of candidates, and the members of the same parties and organizations who have been elected to the Seimas in one - candidate electoral areas, shall form one factions. Factions may not be established on the basis of individual, professional or internal interests. A member of the Seimas may be a member of only one faction. Political parties and political organizations represented by the Seimas members who were elected not from the list of candidates may from a faction of the Seimas members who have been elected in one - candidate electoral areas, provided such a faction includes at least one - fifteenth of all the members of the Seimas". It is specified in the second part of Article 26 of the same chapter that: "A faction must be registered within one week provided it has submitted the decision of a party or political organization to establish a faction or a political declaration signed by all members of such a faction which, besides the statute of the political group, must include the commitment to act in compliance with the Constitution and laws of the Republic of Lithuania, seek the strengthening of Lithuania's independence, and defend its territorial integrity". The petitioner - a group of the Seimas members - request the Constitutional Court to recognize that Article 25 of Chapter 5 of Part II of the Statute contradicts the fourth part of Article 59 of the Constitution of the Republic of Lithuania which establishes that, in office, Seimas members shall act in accordance with the Constitution of the Republic of Lithuania, the interests of the state, as well as their own consciences, and may not be restricted by any mandates. The petitioner bases his request on the fact that the provisions set forth in Articles 25 and 26 of the Statute of the Seimas that establish the procedure order of the formation of factions, and commission all members of such a faction to sign a political declaration in which, along with other commitments, would be a commitment to act in compliance with the statute of the political group, make Seimas members to comply with specific mandates. At the same time, Article 34 of the Law of the Republic of Lithuania on Elections to the Seimas provided for the possibility to several political parties or public political movements to join lists of candidates nominated by them but not their programmes. The petitioner's representative explained in the court hearing that the Constitution of the Republic of Lithuania shall not recognize the imperative principle of the mandate of a Seimas member and establishes the democratic principle - i.e. unrestricted mandate of a Seimas member, which means, that a member of the Seimas is representative of the People and not of a party, ethnic community or social layer. The petitioner's representative has also maintained that all Seimas members are equal, irrespectively of the fact whether they are elected in one-candidate or multi-candidate electoral area. The procedure of forming factions, established in Article 25 of the Statute of the Seimas, gives the right of forming factions to parties or political organizations, but not to members of the Seimas, as well as provides for various possibilities for Seimas members, who have been elected in multi - candidate or one - candidate electoral areas, to join into a faction. In the opinion of the petitioner's representative the basis for political grouping in the Seimas must be equal. The petitioner's representative has also explained that the requirement of Article 26 for the Seimas members to sign a political declaration as well as the right of the Seimas Board to register a political group or not, which is established in the same Article, is in direct connection with Article 25 These provisions also violate the freedom of Seimas members to join into factions and to exercise the rights enumerated in the Statute of the Seimas. During the preliminary investigation and in the court hearing, the representative of the party concerned explained that, in his opinion, Articles 25 and 26 of Chapter of Part II of the Statute of the Seimas did not contradict the Constitution of the Republic of Lithuania and submitted the following arguments:
- Upon the enforcement of the Constitution of the Republic of Lithuania, which does not provide for imperative principle of the mandate of a Seimas member, and taking into consideration a new mixed system of elections, the procedure of forming factions which had been established in the Statute of the Supreme Council, was amended in the adopted Statute of the Seimas. The norms of Articles 25 and 26 of Part II of the Statute of the Seimas establish the nature of a faction as a structural unit of the Seimas, procedure of its formation, however, it does not regulate the right of the Seimas members to participate in factions.
- The petitioner in the request to the Constitutional Court interprets the provisions of Articles 25 and 26 of the Statute of the Seimas leaving out of account the fact that the Statute of the Seimas is an integral act of law. The submitted interpretation of said articles contradicts other norms of the Statute of the Seimas. The rights and freedoms of a Seimas member are defined in the first part of the Statute of the Seimas which determines the status of the Seimas member. A constitutional norm specifying that "in office, Seimas members shall act in accordance with the Constitution of the Republic of Lithuania, the interests of the Sate, as well as their own consciences, and may not be restricted by any mandates" is established in the second part of Article 3 of the Statute of the Seimas. This part of the Statute of the Seimas is already adopted and valid, thus, it is obvious that Seimas members join into factions in the procedure prescribed by Articles 25 and 26 of the Statute of the Seimas at their own free will and without being restricted by any mandates.
- A provision specifying that "political parties and organizations shall form factions of Seimas members for expressing their respective political views and for implementing their political programmes and goals" is set forth in the first part of Article 92 of the Statute of the Seimas. This norm is an evident reflection of the political nature and subject (political party or political organization) of factions, initiating their formation. The Statute of the Seimas does not provide for the necessity for a Seimas member to be in a faction. In accordance with the first part of Article 25 of Statute of the Seimas, Seimas members may form factions, but this is not an obligatory requirement. Seimas members may choose factions at their free will, without being restricted by any mandates which is confirmed by the application of the norms of the Statute of the Seimas in practice.
- Article 76 of the Constitution of the Republic of Lithuania gives the Seimas the right to determine the structure of the Seimas, freely choose and adopt any procedure of forming factions in compliance with the Constitution. The Seimas, by adopting one way of forming factions from all possible ones, has exercised its constitutional right.
- In the request of a group of the Seimas members, to the Constitutional Court, an argument that, in accordance with Article 26 of the Statute of the Seimas, all members of a faction must sign a political declaration, which, besides other commitment, must include the commitment to act in compliance with the statute of the faction, does not fit to reality. Article 26 of the Statute of the Seimas does not hold such a commitment. The provision concerning political declaration was transferred from the Statute of the Supreme Council and appended by the requirement to submit the decision of a party or political organization in order to establish a faction. As, in accordance with Article 92 of the Statute of the Seimas, political parties and organizations shall form factions of the Seimas for expressing their respective political views and for implementing their political programmes and goals, a political declaration should reflect if political views, programmes and goals are in compliance with the Constitution of the Republic of Lithuania. Such a requirement may not be interpreted as the restriction of the rights of Seimas members. The Constitutional Court holds that: It is established in the fourth part of Article 59 of the Constitution that, in office, Seimas members shall act in accordance with the Constitution of the Republic of Lithuania, the interests of the State, as well as their own consciences, and may not be restricted by any mandates. Thus, the Constitution establishes an unrestricted mandate of a Seimas member and does not recognize any imperative mandate. The essence of an unrestricted mandate lies in the freedom of a People's representative to implement the rights and duties vested in him without restricting this freedom by any mandates, political requirements of parties and organizations that nominated them, and without recognizing the right to revoke a Seimas member. Every member of parliament represents all the People, all members of parliament are representatives of the people. While differentiating the rights of Seimas members in such a way, in fact, unequal possibilities for their participation in Seimas activities are determined and substantial principle of representative institution - equality of members of parliament - is violated, therefore, there are no possibilities to represent the whole People in the Seimas and to express the People's interests. The principles of equality of members of parliament as well as unrestricted mandate must also be kept in the formation of internal structures of the Parliament. As a rule, structures of two types are formed in parliaments: committees (or commissions) and factions (or parliamentary groups). The former structures are formed on the basis of specialization principle of parliamentary activities, which ensures due professional preparation of issues and parliamentary hearing on these issues. Structures of the second group help to realize political orientations and goals of members of parliament (not necessarily on the basis of their party - membership) as well as to ensure organized relation of parliamentary groups with political parties and organizations represented in the parliament. In determining internal structure of the parliament universal principles of its formation must be chosen, which would ensure equal and real possibilities for all members of parliament to participate in the formed structures. Otherwise, not all members of the Seimas would have the possibility to exercise supplementary rights, set forth for structures, and this would mean the violation of the principle of equality of all members of parliament. Factions are sub-units of the Structure of the Seimas, therefore, the establishment of the procedure of their formation, their rights and duties is the prerogative of the parliament, determined by its self dependence within the limits of the Constitution. Though factions are mostly formed on the basis of party - membership, their most essential destination is to ensure working - capacity of the parliament as well as its normal functioning. Therefore , the statement of the first part of Article 25 of Chapter 5 of Part II of the Statute of the Seimas "political parties and organizations and their coalitions ... shall form .... faction" must be interpreted as groundless (wordings with similar content can be found in the second part of this article as well as in Articles 9, 92, 26, of the Statute of the Seimas. Parliamentary factions are formed by members of parliament on the basis of the procedure of their formation prescribed by the parliament (most frequently in accordance with views and political goals), but not by political parties, political organizations or their coalitions as prescribed by the first part of Article 25 of the Statute of the Seimas. Though factions are in close relation with political parties, it does not mean, however, that a faction is a political party in the Seimas, and, in turn, that every party having its representatives in the Seimas is a faction at the same time. Such a conclusion must be drawn in accordance with the principle of unrestricted mandate established in the Constitution. Rights and duties of Seimas members may not be associated with laws on election. Firstly, these are different subject matters of legal regulation (in the first case - elections, in the second one - activities of the parliament) - secondly, the subject matter of regulation calls forth different criteria, on the basis of which rights and duties of participants of legal relations are determined. In determining the procedure of the formation of factions, the total number of deputies, the nature of rights and duties of factions established in the Statute, the necessity to guarantee equal possibilities for all to express views and political goals, the principle of the minority's defence, minimal requirements for protection of parliamentary opposition, should be taken into consideration. Furthermore, in cases of forming the governing body of the parliament, when committees are set up and their heads are appointed, means are distributed, and other parliamentary functions are realized, the cases when minor political groups find themselves in better position than major ones, should be prevented. However, when applying the said criteria, the principle of unrestricted mandate of a parliament member may not be violated. A decision of the parliament, in accordance with which deputy rights to participate in parliamentary process are differentiated, violates the rights of a deputy as People's representative. The procedure of forming factions is established in Article 25 of Chapter 5 of Part II of the Statute of the Seimas. In accordance with the rules of formation of factions, set forth in this Article, Seimas members are in essence divided into the following three groups: 1) members of political parties and political organizations as well as their coalitions who have been elected to the Seimas from the same list of candidates; 2) members of the said parties and organizations who have been elected to the Seimas in one - candidate electoral areas; 3) members of political parties and political organizations who have been elected to the Seimas not from the list of candidates but in one - candidate electoral areas. In conformity with aforesaid Article of the Statute of the Seimas, Seimas members from different groups shall be joined into factions following different principles. Seimas members from the first group are joined into factions from the same list of candidates. Seimas members from the second group may join only into the faction of the Seimas members of the first group. Seimas member of the third group may form a faction following the party and organizational principle, i.e. in the event when such a group comprises not less than one - fifteenth of Seimas members. On the basis of principles of forming factions, established in the above mentioned Article of the Statute of the Seimas, the conclusion must be drawn that Seimas members may form factions under different unequal conditions, i.e. they are not given the right to act in accordance with uniform criteria. Thus, the principle of equality of all Seimas members as well as the principle of equal representation is violated. Hence, the requirement for members of a faction to sign a political declaration, set forth in Article 26 of the Statute of the Seimas. Under the said procedure of forming factions, Seimas members do not have equal rights in choosing whether to sign one or another political declaration. Finally, the very requirement to sign a political declaration, is not in conformity with the principle of unrestricted mandate. Such a requirement, especially its part dealing with the commitment "to act in compliance with the Constitution and laws of the Republic of Lithuania, seek the strengthening of Lithuania's independence, and defend its territorial integrity", has lost legal relevance it possessed after the establishment of an oath for Seimas members in the Constitution of the Republic of Lithuania and the Law "On the Procedure of the Enforcement of the Constitution of the Republic of Lithuania". The freedom of members of parliament ensured by the principle of unrestricted mandate, which is established in Article 59 of the Constitution of the Republic of Lithuania, is in essence restricted by the procedure of the registration of factions, set forth in Article 26 of the Statute of the Seimas, providing for the necessity of special decisions of political parties and political organizations in this procedure, as well as indirect legislative procedure of registration, carried out by the Seimas Board. The equality of Seimas members in the formation of factions in accordance with views and political goals is a relevant element of the implementation of the principle of unrestricted mandate. As a faction (i.e. members of parliament are registered in it) has more possibilities to participate in the activities of the parliament than a Seimas member not adhering to any faction, there must be ensured the possibility for all Seimas members to freely choose and form factions. Seeking to ensure working - capacity and efficiency of Seimas activities, it is essential to determine a minimum number of members of a faction. The rights and possibilities of Seimas members who do not register themselves into factions, equal with those of other Seimas members and allowing to implement the rights of People's representative, may be ensured by recognizing the fact that they are members of a mixed faction (group), and maintaining that such a faction (group) has equal rights with other factions. On the basis of the aforesaid arguments, the Constitutional Court draws the conclusion, that the procedure of forming factions, established in Article 25 and 26 of Chapter 5 of Part II of the Statute of the Seimas, does not provide for the criteria and possibilities equal for all Seimas members to form factions in accordance with views and political goals, therefore, this procedure contradicts the fourth part of Article 59 of Constitution of the Republic of Lithuania. Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55 and 56 of the Law of the Republic of Lithuania on the Constitutional Court, the Constitutional Court of the Republic of Lithuania has taken the following decision: to recognize that Articles 25 and 26 of Chapter 5 of Part II of the Statute of the Republic of Lithuania contradict the fourth part of Article 59 of the Republic of Lithuania. This Constitutional Court decision is final and not subject to appeal. The decision is promulgated on behalf 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