SUMMARY

The title of the monograph (“A concept and the institutional model of legislation in Lithuania”) shows that it analyses the issues related to law-making. Accordingly, the legislation in Lithuania is the object of this book in general sense.

However the study does not go into the question of specific legislative procedures. It analyses only the theoretical (abstract) model of legislation, to be precise, the characteristics of the major structural elements, i.e. subjects participating in legislation, of the model and the most important types of relationship between these elements. With the view to clarifying the context and properly defining the boundaries, the study starts with more abstract issues – concept of a law (as a specific kind of legal acts) and legislation.

A law is a universal and, under the Constitution of the Republic of Lithuania, the primary means (as courts and other state institutions as well as officials are not sovereign and obey exceptionally the laws) to ensure the implementation of the constitutional principle of the equality of individuals.

It is not possible to ensure the equality of individuals if decisions made in each individual case are not based on clear rules of general character. This is determined not only by a possibility of abuse of office by institutions and officials who have wide powers unrestricted by general rules but also by absence of an objective equality standard. Pursuant to the Constitution, all individuals are (must be) equal before the law and the rules of general character can ensure the equality. Only the rules of general character can be set forth in a law. Exceptions must be envisaged by the Constitution, for example, approving the state budget drawn up of the norms of individual character.

All the primary (establishing original rights and duties) standards of law must be consolidated in laws. This means that even laws cannot envisage the rules of individual character that are not based on the rules of general character.

As legality of laws is assessed according to their conformity with the Constitution, in Lithuania laws do not have the typical aspect of the supreme legal power. They can only have the specific legal power attributed to them.

Taking into consideration the analysis of the features of law carried out in the thesis, a law of the Republic of Lithuania is defined as follows: (1) the Seimas or the Nation- (2) enacted laws pursuant to the special procedure envisaged by the Constitution and the laws, (3) that are in line with the Constitution; (4) a law is an official written document (5) expressing the legislators’ will (6) to set primary rules (7) that hold a specific legal power and (8) general rules of behaviour (9) sanctioned with the state control.

The formally institutional organisation of institutions and other subjects participating in legislation is based on the principle of the separation of powers. In Lithuania, like in many other countries, this principle is complemented by the mechanism of checks and balances. For this reason, different entities participate in legislation.

The parliament (Seimas) is traditionally considered the legislative power. In most democratic countries (including Lithuania) the nation also has the legislative powers. Sometimes under certain conditions the head of state and/or the government can make laws (such a practice existed in Lithuania in the first half of the 20th century).

Currently it is common to state that Lithuania has two legislators: the Seimas and the Nation.

Under the Constitution, the Nation is formally named as the sovereign; its powers in legislation are limited. The Constitution does not contain these limitations expresses verbis. Nevertheless, under the Constitution, the Nation cannot adopt: 1) a law on the state budget, 2) constitutional laws, 3) laws on ratification and denouncing international treaties, 4) laws on establishing administrational-territorial division, 5) laws on state taxes and other laws on mandatory duties and, 6) amnesty acts.

The Seimas’ competence is also limited. The Seimas cannot enact laws that address the “most important issues concerning the life of the state and the Nation”. In fact, there are no objective criteria to distinguish these issues. The current situation is as follows: the importance of an issue is estimated according to subjective criteria, i.e. if the Seimas (a relevant number of the members of the Seimas) or 300.000 citizens believe it is essential.

The discretion of both above-mentioned legislators is restricted. Neither can adopt laws that are in breach of the Constitution.

Lithuania’s becoming a member of the European Union brought about a new situation where the powers of both the Nation and the Seimas to enact laws were restricted in some fields (where in accordance to the key agreements of the European Union the fields are regulated by the relevant EU regulations). The directives adopted on the basis of the founding treaties of the European Union restrict the discretion of the Lithuanian legislators.

It should be noted that different shortcomings have been attributed to the above-mentioned legislators (the nation and the parliament) in all the countries and at all times. The key shortcoming of a nation as a legislator is the fact that it is unable to duly solve state-level issues: the totality of citizens can easily be misled, they lack knowledge or competence on specific issues, their decisions are based on stereotypes, etc. Another limitation of a nation is related to the possibility that anonymity of its decisions can provoke cruelty and intolerance.

Despite logical validity of the above-mentioned shortcomings their practical correctness is not proven. Falseness is also not proven as the only existing example of a nation’s participation in legislation (Switzerland) among other things proving the falseness of the above-mentioned reproaches could hardly serve as basis for generalisation.

To the disadvantage of a nation as a legislator, an argument of a procedural kind is presented: during a referendum it is not possible to adopt a maximum best and balanced law as in every case there is a choice “either ... or”. There is a vote en bloc and no editorial (even most rational) amendments are possible.

Besides, the legislation that involves a referendum is related to huge costs.

The nation’s participation in legislation is beneficial because it ensures a higher legitimacy of the decisions and brings the nation closer to the ruling elite (thus the gap between what citizens expect from the administration and what they receive from the administration is minimised), moreover, this guarantees every citizen’s right to participate in tackling his/her affairs.
Taking into consideration the strengths and weaknesses, it is possible to state that there is one case where the laws adopted by the nation have all the strengths of the laws adopted by the parliament and the nation, and avoid almost all the failings. These are ratification referenda where the parliament-approved draft laws are adopted (or rejected).

The nation is only a nominal legislator in Lithuania. The recent practice proves that currently the requirements for holding a referendum program an impossibility to pass laws in referenda (even the referenda held jointly with elections often fail to be valid, in contrast to elections). This conclusion is confirmed by the fact that the requirements for initiating a referendum (in the event of citizens’ initiative) are practically impossible to meet: so far nobody has managed to collect 300.000 signatures required to initiate a referendum, i.e. 12 percent of the citizens of the Republic of Lithuania who have the right to vote.

Consequently, the Seimas is de facto the only legislator in Lithuania.

What’s more, the parliament as a legislator also has some weakness. First of all, parliament members, unlike the whole nation, are more prone to bribing or may be subject to some other personal impact. On the other hand, in the contemporary (electoral) system of forming the state administration, the parliamentarians who seek to stay in office pander both certain social or territorial groups of the electorate (by adopting laws beneficial to them) as well as their supporters.

Legislating at the Seimas has at least two aspects that cause negative consequences: 1) the order that lessens the legitimacy of the adopted laws and fails to ensure proper representation of all the social groups according to which there is no quorum for enacting legislation, and 2) a very big change in the personal composition of the Seimas that (taking into consideration the abundance of draft laws submitted by the Seimas members that are their “philosophy of life”-oriented) hinders the stabilisation of the legal system. This problem cannot be resolved with the help of legal measures. The thing is that it emerged as a means to tackle another problem (in terms of the obstructional practice of disrupting the decision making process in the Supreme Soviet of the Republic of Lithuania, i.e. the Reconstituent Seimas in 1992).

In the context of foreign Constitutional practice, the members of our Seimas have very wide (practically unlimited) possibilities to initiate draft laws: draft laws can be initiated by individual members of the Seimas who can initiate not only finished draft laws in terms of the contents and form but also submit proposals in “free form” on legislation; members of the Seimas can submit draft laws on any field (except for the draft laws on the state budget and on the ratification of international treaties); last but not least, the end of a session does not mean shelving of a draft law.

On the other hand, members of the Seimas often submit “non-systematic” (not in line with the national legal policy) and non-fundamental (not having a determining impact on the entire legal system) draft laws. Besides, the projects submitted by a part of the members of the Seimas are a priori prospectless (opposition-submitted draft laws are referred to in this case).
For this reason the draft laws submitted by the Seimas members are rejected most frequently.

Taking into consideration the workload of the Seimas, discussing the draft laws that are doomed to failure in the Seimas plenary sittings may be considered as an irrational practice. One of potential ways of cutting the Seimas workload is as follows: a condition should be imposed that a plenary session will only discuss the draft laws initiated (backed) by a certain number of the members of the Seimas whereas the draft laws initiated by individual MPs may be rejected by the final decision of the Seimas committee.

The Speaker of the Seimas performs some specific technical functions in legislation. The core function is as follows: where the President fails to sign a bill into law or to veto it, the Speaker signs and promulgates a law (the Speaker cannot veto a law). The previous practical significance of this function was played down by the decision of the Constitutional Court where the Court interpreted that in the absence of exceptional conditions set forth by the Constitution this prerogative cannot be exercised by the Speaker.

The following general trend has been observed: where the Government is granted the right of initiative in the field of legislation, it very often is one of the subjects that are exceptionally active in exercising the right. The same situation can be observed in Lithuania.

The governments’ activity in legislative process is determined by two key preconditions. First and foremost, each “rational” government is interested in drafting the laws it will later have to implement. Secondly, the government has the state’s biggest resources at its disposal. It is therefore natural that in Lithuania, like in other countries, almost all fundamental laws are submitted to the Seimas by the government.

The government formally has no special powers in legislation, as compared to other entities. In Lithuania the links and interdependence between the Government and the Seimas and their de facto co-operation are well marked. The link is strengthened by the fact that the leader of the ruling parties at the Seimas (the main parties participating in the coalition) is always the head of the Government.

Draft laws are prepared not by the Government itself but by lower-level government institutions, such as ministries, departments, and offices. This practice is based on the “best knowledge” rule. It also urges those drafting laws to make their draft laws first and foremost serve the interests of the bureaucrats who create them rather than the interests of the public; in conclusion, it is not the best way.

In Lithuania the Government in fact has no formal restrictions on initiating draft laws. The only restriction is as follows: it has no power to submit draft laws for discussion if these laws ratify international treaties. But the Government can prepare a draft law on the state budget and submit it to the Seimas for discussion.

The practice of commissioning the Government to prepare particular draft laws raises some doubts about its accord with the Constitution.

The President of the Republic performs two core functions in legislative process: initiating laws and signing and promulgating thereof, alternative is vetoing.

It should be noted that by granting the President of the Republic the right to legislate from the point of view of this constitutional arrangement element, Lithuania has moved closer to many other states of the “post-Soviet space”. The fact that a relevant model in Europe is used by “immature” democracies does not mean that the model is bad by itself.

In terms of legislation, two cases should be pointed out. The first case involves submitting draft laws on ratifying international treaties (this right is enjoyed exceptionally by the President, but in fact it is usually implemented on the Government’s proposal and concerns clear priorities of Lithuania’s foreign policy and are adopted by the Seimas without any major disagreements; in practice it is insignificant).

The second case concerns “ordinary” draft laws. In this case the President formally does not in any way differ from other law entities that enjoy the right of legislative initiative. In practice, however, this function of the President does not play any significant role (submits about 1 percent of the total the Seimas-registered draft laws, most often these are not fundamental acts).
As for implementing the veto right, the President exercises the right with care, responsibility and moderation. Even though the actual impact of direct exercising of veto right on legislation is not big, in the cases of exercising the veto right the Seimas most often seeks to reach consensus with the president of the Republic.

In Lithuania veto (under the current procedure of its elimination) is most effective in the role of an instrument that can potentially be employed. By using it, the most effective pressure can be exerted throughout the whole legislative procedure. Eliminating officially proclaimed veto depends largely on the ruling majority’s readiness to invite its all representatives to the plenary sitting.

In Lithuania the President of the Republic is not responsible for implementing laws (i.e., does not perform the functions attributed to the Government) so there is no necessity to give him efficient levers in the field of veto. Even the partial veto institution desired by many heads of countries is linked to some shortcomings: if granted this right the President could manipulate with the text of the law and “create” a law not only formally but also essentially different from the one passed by the Seimas and submitted to him. Introducing partial veto in the field of the state budget could reduce potential abuse by the MPs who seek to please the electorate.

In some countries the head of state can apply a constitutional surveillance institution with a request to work out estimation whether a law is in line with the Constitution. The current practice shows that granting this power to the President would not influence the actual situation in Lithuania as all the laws that raise President’s relevant doubts (it is possible to judge about such doubts from his decrees on returning laws to the Seimas for re-discussing) were submitted to the Constitutional Court by the Seimas opposition (the doubts have been grounded only once so far).

As compared to foreign practice, in Lithuania the conditions and procedure exercising citizens’ legislative initiative are subject relatively liberal regulation. Here, unlike in many countries of Europe, there are no direct restrictions on exercising this initiative are stipulated. There are two indirect restrictions, i.e. 1) a draft law on the state budget of the Republic of Lithuania can only be prepared and submitted to the Seimas by the Government, 2) draft laws on ratification and denouncing international treaties (such draft laws are submitted to by the President).

In practice, however, citizens’ legislative initiatives are related to politicians’ rather than citizens’ initiatives. Citizens’ legislative initiative most often used to be employed not so much for the sake of promoting the idea of lawmaking but for making use of citizens’ signatures for exerting political pressure on the Seimas ruling majority by opposition powers and communicating a certain message to the electorate. Out of seven initiatives, one brought some results.

Exercising the right of petition at the Seimas is in fact an indirect legislative initiative. It diminishes the significance of the Constitutional right of 50.000 citizens’ initiative. This right does not make any practical influence: so far only two laws have been passed on the basis of the problems addressed in petitions.

The Constitutional Court is involved in legislation both directly (as the “negative lawmaker” where a direct influence is made on the system of the existing laws) and indirectly (it interprets the meaning of one or another constitutional provision on the norm on how legal relations should or could be regulated).

Through the negative lawmaking, the Constitutional Court influences the formation of the national legal system. This role is important not only due to the numbers describing it (the scope of impact accounts for 2 percent of the routine legislation at the Seimas) but through these decisions the Constitutional Court unilaterally abrogates laws or parts thereof (these decisions are final and not subject to appeal).

The Constitutional Court implements a very important function of ensuring constitutional legality and protects the society from legislators’ abuse, i.e. performs the function of a brake or balance.

Neither the Constitution nor the valid laws expressis verbis stipulate that our Constitutional Court should interpret the Constitution and other legal acts. As it has no special interpreting capacities and in Lithuania there is no legal institution of constitutional precedent, it cannot replace either the consultative or other mandatory interpreting the Constitution and laws that imposes legal restrictions on the decisions of the Seimas or the Nation. Nevertheless, the Constitutional Court is an institution that applies the law (jurisdiction); consequently, it can present operative explanation. This means that de jure the Constitutional Court’s interpretation imposes restrictions on other entities only in this particular case (still, there is no reason to deny that such an interpretation can influence or de facto influences a legislator).

It is not possible to implement the Constitutional Court’s decisions by force (except for the fact that the validity of the provisions that are not in line with the Constitution ceases with the declaration of a certain decision), i.e. nobody can force the Seimas to pass one or another law, or approve of a certain version of a law. This does not mean that legislator cannot be and are not influenced. Taking into consideration the Constitutional Court’s possibility to declare laws that are in breach of the Constitution and the Court’s jurisprudence, the provisions set forth in the recitals have dual significance. Where the Constitutional Court has no such a possibility, a legislator can treat the Court’s estimations as a mere advice on due exercising constitutional duties. In such a case much depends on persuasive legal argumentation and acceptability of the proposed regulation. Otherwise the Constitutional Court can exert a certain pressure on a legislator. Normally such a pressure is exerted in cases where the Court refers to a legislators’ duty in a certain way to regulate relations that are or will be subject to regulations; and the Court has a possibility to declare a law to be in beach of the Constitution if this law fails to meet relevant criteria.

The data describing the situation over the past ten years prove that the postulates formulated by the Constitutional Court very often become an argument in the legislative process. This suggests that the role of the Constitutional Court steps over the former boundaries of the “negative lawmaking”. It is difficult to speak about a concrete impact on the contents of the laws. The increase in the influence of the informal Constitutional Court jurisprudence marks a positive feature of the legislative process, i.e., it is becoming more open to the ideas of one of the powers (Constitutional Court) and its concept of the Constitution.