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:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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