of the Constitution of the Republic of Lithuania and
of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 8 May 1997 conducted the investigation of Case No. 3/97 subsequent to the petition submitted to the Court by the petitioner - a group of the members of the Seimas of the Republic of Lithuania - requesting to investigate if the 5 December 1996 Seimas of the Republic of Lithuania Resolution “On Recognising the Seimas Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as Being Voided and the Formation of the Council of the National Radio and Television of Lithuania” was in compliance with Articles 7, 67, 69 and 70 of the Constitution of the Republic of Lithuania. The Constitutional Court has established: I On 5 December 1996, the Seimas adopted its Resolution “On Recognising the Seimas Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as Being Voided and the Formation of the Council of the National Radio and Television of Lithuania” (Official Gazette “Valstybës Þinios”, No. 120-2820, 1996; hereinafter in the ruling referred to as the disputed resolution of the Seimas). Following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, the Seimas recognised the resolution of the Seimas “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as being voided, commissioned the Education, Science and Culture Committee of the Seimas with organising the formation of the Council of the National Radio and Television of Lithuania until 31 December 1996 and established that the resolution shall enter into force from the day of its adoption. II 1. The petitioner grounds his request on the following arguments.
of the Constitution stipulates that laws shall be enacted in the Seimas in accordance with the procedure established by law; Part 2 of Article 70 of the Constitution prescribes that the laws enacted by the Seimas shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date, while Part 2 of Article 7 of the Constitution establishes that only laws which are promulgated shall be valid. The petitioner, on the basis of the said provisions of articles of the Constitution, points out that the Seimas, when adopting the disputed resolution, was following the Law on Amending Article 29 of the Law on the Provision of Information to the Public which, on the day of the adoption of the said resolution, was neither signed nor promulgated by the President of the Republic. The petitioner also indicates that Item 5 of Article 67 prescribes that the Seimas shall form State institutions provided by law, and shall appoint and dismiss their chief officers. The members of the Council of the National Radio and Television of Lithuania who were appointed by the 5 November 1996 resolution of the Seimas may, according to their status, be equalled to chief officers of such institutions. According to Part 4 of Article 8 of the 8 October 1996 Law on the Provision of Information to the Public, the members of the Council may not be dismissed from office before expiration of the term of appointment save a member of the Council:
of the Constitution without having in mind the other articles of the Constitution which had been mentioned by the petitioner. First of all one should assess the compliance of the disputed legal act with Article 69 of the Constitution, Parts 1 and 2 whereof establish procedure of adoption of laws, Part 3 - that of adoption and amendment of constitutional laws, while Part 4 of the said article stipulates that provisions of the laws may also be adopted by the referendum. The representative of the party concerned concludes that the content of Article 69 does not permit to speak about the relation of this article with the disputed resolution of the Seimas.
Part 2 of this article stipulates that other acts adopted by the Seimas (as well as other Seimas resolutions) and the Statute of the Seimas shall be signed by the Chairperson of the Seimas, while the said acts shall become effective the day following the promulgation thereof, unless the laws themselves provide for another procedure of enforcement. Article 3 of the disputed resolution of the Seimas provides that this resolution shall come into force from the moment of its adoption. It was signed and promulgated by the Chairperson of the Seimas as established in Part 2 of Article 70 of the Constitution. The representative of the party concerned is of the opinion that by adopting the disputed resolution the Seimas accomplished the provision of Part 2 of Article 70 of the Constitution. The representative of the party concerned also contends that the provision contained in the preamble of the disputed resolution has not aroused any legal effects. In his opinion, according to the legal theory, the preamble of a legal act is an introductory part indicating the aims and motives of the adoption of the said act but not that of normative character. This is also confirmed by shorthand records of the Seimas sitting, as in the sitting during deliberations over the disputed resolution of the Seimas there were propositions not to enter the said preamble into the resolution at all. The party concerned notes that the allusion formulated in the petition for the Constitutional Court that the provision of the preamble of the disputed resolution of the Seimas contradicts Articles 69, 70 and 7 of the Constitution has no legal basis. In his paper the representative of the party concerned also points out that Article 67 of the Constitution consolidates the functions and powers of the Seimas as an institution of representative power. Item 5 of the said article provides that the Seimas shall form State institutions provided by law, and shall appoint and dismiss their chief officers. On 5 November 1996, by adopting the Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania”, the Seimas neither established any State institution nor appointed its chief officers. Following Article 29 of then in force Law on the Provision of Information to the Public, the Seimas appointed 4 members of the Council of the National Radio and Television of Lithuania. Therefore the disputed resolution should not be regarded as contradicting Article 67 of the Constitution. 2. The representative of the party concerned in his supplementary paper of 7 May 1997 explained the following as concerns the disputed resolution of the Seimas.
of the Constitution stipulates: “Any law or other statute which contradicts the Constitution shall be invalid.” This fundamental provision of Chapter 1 entitled “The State of Lithuania” of the Constitution regarding constitutionality of laws and other legal acts is realised through the competence of the Constitutional Court consolidated in
and
In the legal system of the Republic of Lithuania, it is only the Constitutional Court which may judge if the laws and acts of the Government are in compliance with the Constitution or laws. The representative of the party concerned contends that the contradiction of laws and other acts of the Seimas, as well as the disputed resolution of the Seimas, may be investigated, in essence, in view of the Constitution. The problem of both the law and the disputed resolution of the Seimas as a substatutory act is left for the so-called “self-control of the Seimas”, though, it goes without saying, the acts of the Seimas may not contradict the law. It is evident from
and
of the Constitution, that Seimas resolutions, as acts of a legislative body, are to be compared to laws, and the Constitutional Court, under the aforementioned articles of the Constitution, as well as Article 63 of the Law on the Constitutional Court, may examine problems of compliance of Seimas resolutions with the Constitution only. It is noted in the supplementary paper that the Constitution is an indivisible, co-ordinated act as regards the content of its provisions. It regulates in detail, even in precision most possible a part of questions of state life, whereas a part of questions of state life are regulated by the norms of greater or smaller definition as to their content, while some questions are not constitutionally regulated at all, i.e., as regards their relation with the Constitution, they are to be assessed as being constitutionally non-regulated.
of the Constitution stipulates that “censorship of mass media shall be prohibited”, while Part 2 of the said article provides that “the State, political parties, political and public organisations, and other institutions or persons may not monopolise means of mass media”. The Constitution does not consolidate any principles which as constitutional principles would determine the legal status of the National Radio and Television. According to Article 29 of the Law on the Provision of Information to the Public and the Law on the National Radio and Television of Lithuania implementing the aforesaid law, the National Radio and Television of Lithuania shall be a functioning institution. However, the norms of these laws have no constitutional power and the Constitutional Court may not examine this relation (between a law of the Seimas and a resolution of the Seimas), while the Constitution even does not mention such an institution as the National Radio and Television of Lithuania. It is alleged that the disputed resolution of the Seimas would contradict Part 2 of Article 67 as to the form if universally binding rules of general character were formulated therein. The disputed resolution of the Seimas is an act of individual character which does not contain any universally binding rules of general character which should be formulated in the form of law. Thus it does not contradict the Constitution as to the form. It is also indicated that the provision of the disputed resolution of the Seimas, mentioning that the Seimas was following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, has had no legal effects. This is to be assessed as a “technical error” which was significant for the going into effect of the act but not, however, for the essence of the act. It is alleged that, according to the legal theory, the preamble of a legal act is an introductory part indicating the aims and motives of the adoption of the said act but not that of normative character. Such a conclusion is also grounded on the fact that in the sitting of the Seimas during deliberations over the disputed resolution of the Seimas there were propositions not to enter the Law on Amending Article 29 of the Law on the Provision of Information to the Public into the preamble. In the court hearing the representatives of the party concerned M. Briedis and P. Vinkleris virtually reiterated these motives and arguments. The Constitutional Court holds that: 1.1. On 2 July 1996, the Seimas passed the Law on the Provision of Information to the Public. Article 1 of the said law consolidates that this law shall establish the procedure of obtaining, processing, and disseminating of public information and the rights and responsibility of public information producers, disseminators, the owners thereof and journalists. Part 3 of Article 29 of the said law established the principles and procedure of formation of governing bodies of the National Radio and Television of Lithuania. It read: “The Council shall be the highest governing body of the National Radio and Television of Lithuania, established for a period of 3 years and comprised of 13 individuals. 3 of the members shall be appointed by the President of the Republic, 4 - by the Seimas, 6 - by drawing lots by choosing 1 from the Lithuanian Periodical Press Publishers’ Association, Lithuanian Journalists’ Union, Lithuanian Journalists’ Society, Lithuanian Writers’, Lithuanian Cinematographers’ Union, Lithuanian Theatre Union, Lithuanian Composers’ Union, Lithuanian Artists’ Union, and Lithuanian Architects’ Union each. After the lapse of a 3-year period, the representatives of 6 of the selected organisations will be changed by drawing lots with representatives of those 3 organisations, which were not selected for the Council during the first term of office.” On 8 October 1996, the Seimas passed the Law on the National Radio and Television of Lithuania.
of the said law provided that the Council and administration of the National Radio and Television of Lithuania shall be governing bodies of the National Radio and Television of Lithuania. The Council of the National Radio and Television of Lithuania shall be formed pursuant to the procedure established by Article 29 of the Law on the Provision of Information to the Public. On 5 November 1996, following Article 29 of the Law on the Provision of Information to the Public and Article 8 of the Law on the National Radio and Television of Lithuania, the Seimas passed its Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” whereby appointed 4 members of the Council of the National Radio and Television of Lithuania. Other members of the Council were also appointed in pursuance of the procedure established by the law. Thus, implementing the norms of the Law on the Provision of Information to the Public and those of the Law on the National Radio and Television of Lithuania, the Council - a governing body of the National Radio and Television of Lithuania - was formed. 1.2. On 5 December 1996, the newly elected Seimas passed the Law on Amending Article 29 of the Law on the Provision of Information to the Public whereby amended Part 3 of Article 29 and set it forth as follows: “The Council shall be the highest governing body of the National Radio and Television of Lithuania, established for a period of 3 years and comprised of 15 individuals. The following art creators’ and public organisations shall delegate their representatives to the Council of the National Radio and Television of Lithuania: the Lithuanian Architects’ Union, Lithuanian Artists’ Union, Society of the Lithuanian Language, Lithuanian Catholic Academy of Science, Lithuanian Cinematographers’ Union, Lithuanian Composers’ Union, Lithuanian Periodical Press Publishers’ Association, Association of Lithuanian House of Economy, Trade and Crafts, Lithuanian Writers’ Union, Charter of Citizens of the Republic of Lithuania, Lithuanian Family Centre, Lithuanian Theatre Union, Lithuanian Lawyers’ Society, Lithuanian Journalists’ Society, Lithuanian Journalists’ Union. The formation of the Council the National Radio and Television of Lithuania shall be organised by the Education, Science and Culture Committee of the Seimas.” This amendment of the law established other principles and procedure of formation of the National Radio and Television of Lithuania than those provided for in the former norm of Part 3 of Article 29 of the Law on the Provision of Information to the Public. On the same day, i.e. 5 December 1996, the Seimas adopted the Resolution “On Recognising the Seimas Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as Being Voided and the Formation of the Council of the National Radio and Television of Lithuania”. Following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, the Seimas recognised the resolution of the Seimas “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as being voided, commissioned the Education, Science and Culture Committee of the Seimas with organising the formation of the Council of the National Radio and Television of Lithuania until 31 December 1996 and established that the resolution shall enter into force from the day of its adoption. On 12 December 1996 the Seimas passed the Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public in Article 1 whereof establishing that “after the 12 December 1996 Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public has come into force [...], the powers of the members of the Council of the National Radio and Television of Lithuania prior appointed by the President of the Republic and the Seimas shall cease.” 2.1.
of the Constitution stipulates that the laws enacted by the Seimas shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date. To implement this constitutional provision, on 6 April 1993 the Seimas passed the Law “On the Procedure of Promulgation and Coming into Force of Republic of Lithuania Laws and Other Legal Acts”.
of this law provides that the official promulgation of laws and other legal acts shall be their promulgation in the official gazette “Valstybës Þinios”. The day of the promulgation in “Valstybës Þinios” shall be the day of the issue of the said publication which is indicated at the first page of each publication whereof.
of the said law provides that the laws of the Republic of Lithuania shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date. Article 5 of the said law provides that the legal acts adopted by the Seimas shall be enforced the following day after their promulgation in “Valstybës Þinios”, unless the acts themselves establish a later enforcement date. The President of the Republic, following
of the Constitution, did not sign the Law on Amending Article 29 of the Law on the Provision of Information to the Public passed by the Seimas on 5 December 1996 and by his decree of 10 December 1996 returned it to the Seimas for repeated deliberation. On consideration of the amendments moved by the President in his decree, during the sitting of 12 December 1996 the Seimas did not approve of them and repeatedly passed the Law on Amending Article 29 of the Law on the Provision of Information to the Public. The said law was signed by the President of the Republic and was officially promulgated in “Valstybës Þinios” on 14 December 1996. The law repeatedly adopted by the Seimas went into effect on 14 December 1996. 2.2. It is universally recognised in the legal doctrine that legal acts are divided into laws and substatutory acts. In view of the case at issue, it is important to establish the place of the laws and other legal acts passed by the Seimas in the legal system, as well as their reciprocity.
of the Constitution provides that “any law or other statute which contradicts the Constitution shall be invalid”. This fundamental constitutional principle defines the supremacy of the Constitution in the system of legal acts. The Constitution is defined as the basic law which has supreme legal power in the hierarchical system of laws. Furthermore, the Constitution consolidates basic provisions of legal regulation and constitutes the basis for legislation. Substatutory acts, including other acts adopted by the Seimas which are mentioned in Part 2 of Article 70 as well, are, as a rule, designated to implement laws, therefore they are passed in pursuance of valid laws and may not contradict them. Thus all legal acts must be lawful: the laws may not contradict the Constitution, while substatutory legal acts - the Constitution and the laws. To implement the lawfulness principle of legal acts, states in their practice make use of the institute of justice and that of administrative justice. The Constitutional Court held in its 19 January 1994 ruling: “A law is an original legal act adopted in the procedure prescribed by the Constitution of the Republic of Lithuania and the Statute of the Seimas which expresses the legislator’s will and which has the supreme legal power. Therefore, a law can be amended or its validity can be nullified only upon the adoption of another law or recognition of it as contradictory to the Constitution by the Constitutional Court. All other legal acts must be adopted conforming to laws and may not contradict them, i. e. must be executive. Executive legal act is a legal act adopted by a competent body on the basis of and according to the procedure prescribed by law. An executive act is usually an act of administration. Norms of the law are realized by it, however, such an act may not replace the law itself and create new legal rules of general nature that in their power would compete with the norms of law. It is an act of application of norms of law irrespective of the fact whether this act is of temporary (ad hoc) or permanent validity.” The requirements for a substatutory act are mandatory for the other acts of the Seimas which are indicated in Part 2 of Article 70 of the Constitution. These acts, following general basics of the legal acts theory, may not contradict the Constitution and the laws, and, all the more, may alter neither the norms of laws nor their content. This is one of the most important rules of creation of a legal system and its internal co-ordination. Part 2 of Article 5 of the Constitution provides that “the scope of powers shall be defined by the Constitution”. This means that the Seimas, while representing the people, is independent as a law-maker as much as his powers are not limited by the Constitution and other laws. The prerogative of the Seimas to adopt, amend, supplement and recognise as voided valid laws and substatutory acts is uncontested, however, the Seimas must conform to the procedure established by the Constitution and universally recognised principles of co-ordination of legal acts. The 8 November 1993 ruling of the Constitutional Court explains: “The process of legislation is the whole complex of legally significant acts necessary for the adoption of a law and performed in rigid sequence of logic and time. The following stages of the process of legislation are universally recognized: the realization of the right to legislation, the consideration of a draft law, the adoption of a draft law, the promulgation and the enforcement of the enacted law. Only with the completion of one stage in consecutive order starts another. The aforesaid consecutive order of the process of legislation is in essence established in the Constitution of the Republic of Lithuania: the realization of the right of legislative initiative - in Article 68, the adoption of laws - in Article 69, the promulgation and enforcement of laws - in Articles 70-72.” Thus, in regulating the process of legislation, it is attempted to seek both the concord between the links of the legal system and implementation of the lawfulness principle in the legislation of legal acts. The rules of the process of legislation are important in the context of the case at issue, too.
The request of the petitioner to assess the disputed resolution of the Seimas as contradicting
The disputed resolution of the Seimas is a substatutory legal act, meanwhile
4. The petitioner - a group of Seimas members - points out in its petition to the Constitutional Court that the adoption of the disputed resolution of the Seimas meant dismissal from office the members of the Council of the National Radio and Television of Lithuania appointed by the Seimas. The petitioner is of the opinion that such a question is, as a rule, decided by a Seimas resolution concerning dismissal respective officials or chiefs. The petitioner also alleged that during the adoption of the disputed resolution of the Seimas the Law on the National Radio and Television of Lithuania did not provide for the legal grounds on the basis whereof one was permitted to dismiss from office the aforementioned members of the Council. Thus, in the opinion of the petitioner, the part of the disputed resolution regarding the dismissal from office of the members of the Council of the National Radio and Television of Lithuania contradicts Item 5 of Article 67 of the Constitution. The Constitutional Court, when investigating the compliance of the disputed resolution of the Seimas with the Constitution from this standpoint, takes account of the fact that questions concerning dismissal from office of the members of the Council of the National Radio and Television of Lithuania are regulated in particular laws. It should be noted that, as it was mentioned, the principles and procedure of formation of the Council of the National Radio and Television of Lithuania were established by Article 29 of the 2 July 1996 Law on the Provision of Information to the Public. Dismissal from office of Council members was regulated by the 8 October 1996 Law on the National Radio and Television of Lithuania. Part 4 of Article 8 of the said law provided that Council members may not be dismissed before expiration of the term of appointment save a member of the Council: “
Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law of the Republic of Lithuania on the Constitutional Court, the Constitutional Court has passed the following ruling: To recognise that the 5 December 1996 Seimas of the Republic of Lithuania Resolution “On Recognising the Seimas Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as Being Voided and the Formation of the Council of the National Radio and Television of Lithuania” contradicts Part 2 of Article 7 and
This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court: Egidijus Jaraðiûnas Kæstutis Lapinskas Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Pranas Vytautas Rasimavièius Juozas Þilys
DI paaiškinimas pagal oficialų įstatymo tekstą. Orientacinis, nepakeičia teisinės konsultacijos.