CONSTITUTIONAL COMPARATIVE LAW Contents 1 Historic constitution constitutional

  • Slides: 118
Download presentation
CONSTITUTIONAL COMPARATIVE LAW

CONSTITUTIONAL COMPARATIVE LAW

Contents 1. Historic constitution: constitutional historic sources; 2. Theory of constitution or constitutionalism 3.

Contents 1. Historic constitution: constitutional historic sources; 2. Theory of constitution or constitutionalism 3. State and public power as elements of national constitution; 4. Rule of law as constitutional principle (value); 5. Democracy as constitutional principle (value); 6. Human rights as constitutional principle (value);

The first written instance of the name of Lithuania is in the Annals of

The first written instance of the name of Lithuania is in the Annals of Quedlinburg (1009) Sanctus Bruno qui cognominatur Bonifacius archepiscopus et monachus XI. suæ conuersionis anno in confinio Rusciæ et Lituæ a paganis capite plexus

Grunwald (Žalgiris), 1411

Grunwald (Žalgiris), 1411

Grand Duchy of Lithuania in XIII-XV c. under rule of Vytautas the Great

Grand Duchy of Lithuania in XIII-XV c. under rule of Vytautas the Great

Commonwelth of two Nations: after Union of Lublin 1569 (till 1795)

Commonwelth of two Nations: after Union of Lublin 1569 (till 1795)

Lithuania 1918 -1940 Lithuania since 1990

Lithuania 1918 -1940 Lithuania since 1990

Lithuanian historic constitution according to Preamble of the 1992 Constitution i) Lithuanian Statutes (СТАТУТЪ

Lithuanian historic constitution according to Preamble of the 1992 Constitution i) Lithuanian Statutes (СТАТУТЪ ВЕЛИКАГО КНЯЗСТВА ЛИТОВСКАГО / Statuta Lituana / Statut Litewski): 1528, 1566, 1588; ii) 1791 Constitution); iii) Constitutions of the First Lithuanian Republic (interwar): 1922 (1928, 1938); iv) February 16, 1918 Independence Act; v) February 16, 1949 Declaration of the Council of Lithuanian Resistance Movement vi) March 11, 1990 Independence Act; vii) 1992 Constitution.

1992 Constitution a product of two main draft-Constitutions: 1) the Sąjūdis - “semi-presidential” draft

1992 Constitution a product of two main draft-Constitutions: 1) the Sąjūdis - “semi-presidential” draft 2) parliamentary constitutional commission “parliamentary” draft.

Constituent parts of complex 1992 Constitution - February 16, 1918 Independence Act; February 16,

Constituent parts of complex 1992 Constitution - February 16, 1918 Independence Act; February 16, 1949 Resistance Declaration March 11, 1990 Independence Rest. Acts 1991 Constitutional Act on independent democratic republic; - 1992 Constitutional Act on withdrawal of Soviet Army and Non Alliance to post-Soviet units; - 1992 Constitution; - 2004 Constitutional Act on EU accession.

Theory of constitution (constitutionalism) 3 paradigms: i) Philosophical constitutionalism; ii) Interpretative (methodological) constitutionalism iii)

Theory of constitution (constitutionalism) 3 paradigms: i) Philosophical constitutionalism; ii) Interpretative (methodological) constitutionalism iii) Value constitutionalism

Philosophical constitutionalism as theories on constitution - C as supreme law or the rule

Philosophical constitutionalism as theories on constitution - C as supreme law or the rule of law itself; - C as act of sovereign: state, people, monarch; - C as freedom of expression; - C as social contract; - C as dialog; - C as incarnation of justice and common good. - “Living constitution”; - C as unchangeable legal Holy scripture - C as linguistic act; - C as …

Value constitutionalism: three constitutional principles (values) - Rule of law: supremacy, separation of powers

Value constitutionalism: three constitutional principles (values) - Rule of law: supremacy, separation of powers and principles of justice; - Democracy: sovereignty of people, elections and parliamentarism; - Human rights: personal, civic-political and socio-economic and cultural rights

Theory of interpretative methodology of constitution - Constitution is very much about how it

Theory of interpretative methodology of constitution - Constitution is very much about how it is interpreted; - Constitution may be interpreted only using methods mentioned in the Constitution; - Constitution always trumps case-law.

Some examples of C-articles interpreted by Lithuanian CC - Linguistic method: e. g. :

Some examples of C-articles interpreted by Lithuanian CC - Linguistic method: e. g. : Art. 98: Minister shall head his respective ministry; - Historic method: e. g. Art. 12: With the exception of separate cases provided for by law, no one may be a citizen of both: Lithuania and another state at the same time); - Systemic / structural: e. g. Arts. 18, 19, 21 (constitutionality of death p. ) - European / internat. : e. g. Arts. 18, 19, 21 (constitutionality of death p. ) - Precedential: Art. 12 - What’s about interpretation, which includes all three constitutional values?

Task for the class on three paradigms of constitutionalism: PP presentation: how two paradigms

Task for the class on three paradigms of constitutionalism: PP presentation: how two paradigms are reflected in your Constitution and case-law of Constitutional Court: - What concepts of constitution are prevailing? - What methods of interpretation of Constitution are used?

3 main constitutional values as universal cover of constitutional regulation Rule of law Democracy

3 main constitutional values as universal cover of constitutional regulation Rule of law Democracy Human rights

Rule of law as broadest constitutional value in LCC’s case-law 1. Supremacy of constitution:

Rule of law as broadest constitutional value in LCC’s case-law 1. Supremacy of constitution: special procedure of adoption and amendment, direct application, constitutional review; 2. Separation of three bodies, representing three sovereign powers: parliament (represents people), executive (represents state) and courts (represents law); 3. Principle of justice, encompassing: equality, common good, proportionality, fairness, good administration etc.

Democracy as constitutional value 1. Sovereignty of people (nation): ethnic and 2. Universal elections

Democracy as constitutional value 1. Sovereignty of people (nation): ethnic and 2. Universal elections under multy-party system as 3. Parliamentarism

Human rights 1. Personal (fundamental) rights; 2. Civil (political) rights; 3. Socio-economic and cultural

Human rights 1. Personal (fundamental) rights; 2. Civil (political) rights; 3. Socio-economic and cultural rights

1 Supremacy (primacy) of Constion as element of rule of law 1. 2. 3.

1 Supremacy (primacy) of Constion as element of rule of law 1. 2. 3. 4. Constitution as constituent act of sovereign; Solemnity of Constitution; Rigidity of adoption (amendment) clause; Explicit supremacy clause (Art. 7: Any law that contradicts the Constitution shall be invalid); 5. Constitutional review clause (The Constitutional Court shall decide whether the laws are in conformity with the Constitution) 6. Inviolable clause (1 st art: “Lithuania shall be an independent democratic republic” may be altered only by referendum if not less than 3/4 of cit. vote in favour)

2. Contemporary separation of powers under idea of rule of law 1. Separation of

2. Contemporary separation of powers under idea of rule of law 1. Separation of 3 p. powers representing 3 sovereigns: legislature (people), executive (state) and judiciary (law); 2. Judicial independence (institutional, instances, professional); 3. Independent national agencies (Central bank, Supreme Audit office, ombudsman) 4. Layers of p. powers: local, regional, national, European, international 5. Subsidiarity: autonomous legal systems:

II. Contemporary division of powers as rule of law principle Art. 5: In Lithuania,

II. Contemporary division of powers as rule of law principle Art. 5: In Lithuania, public power shall be executed by the Seimas, the President and the Government, and the Judiciary; Art. 120: Municipalities shall act freely and independently within their competence defined by the Constitution and laws. Art. 40: Universities shall be granted autonomy. Art. 43: Churches and religious organisations shall conduct their affairs freely according to their canons and statutes.

3. Principle of justice under idea of rule of law - Justice as a

3. Principle of justice under idea of rule of law - Justice as a core of all legal system (Preamble); - Justice as judicial administration (Art. 109: justice shall be administered only by courts); - Justice as equality clause (President takes an oath to be equally just to all); - Justice as non-discrimination clause.

Demos-cratos as constitutional value 1. Sovereignty of people (nation); 2. Elections (referendums) as means

Demos-cratos as constitutional value 1. Sovereignty of people (nation); 2. Elections (referendums) as means of direct democracy; 3. Parliamentarism as means of representative democracy.

Sovereignty of people: civic populus and ethnic natio meanings - Preamble of 1992 C:

Sovereignty of people: civic populus and ethnic natio meanings - Preamble of 1992 C: “Lithuanian Nation having created the State of Lithuania many centuries ago […] by the will of the citizens of the reborn Lithuanian State, adopts and proclaims this Constitution”; - Art. 2: The Lithuanian State shall be created by the Nation. Sovereignty shall belong to the Nation.

Elections as principle of direct democracy - universality, equality, secret ballot, independent electoral campaign;

Elections as principle of direct democracy - universality, equality, secret ballot, independent electoral campaign; - elections as political right; - elections and citizenship. - municipal, regional, parliamentary, presidential elections; - referendum, people’s initiative, people’s constitutional veto as other forms of direct democracy

Universal elections in Lithuania - 1566 Lithuanian Statute – parliamentary and judicial elections; -

Universal elections in Lithuania - 1566 Lithuanian Statute – parliamentary and judicial elections; - 1791 constitution - parliamentary and municipal elections; - 1922 constitution – parliamentary and municipal elections; - 1992 constitution – parliamentary, municipal and presidential elections…

Elections as principle (value) of democracy under Lithuanian C: Art. 4: The Nation shall

Elections as principle (value) of democracy under Lithuanian C: Art. 4: The Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives; Art. 45: The Seimas […] shall be elected for a 4 year term on the basis of universal, equal, and direct suffrage by secret ballot; Art. 78: The President shall be elected for a 5 year term by universal, equal, and direct suffrage by secret ballot; Art. : 119: The members of municipal councils shall be elected for a 4 year term, on the basis of universal, equal, and direct suffrage by secret ballot.

Parliamentarism as principle of representative democracy 1. Special place of parliament in constitutional structure:

Parliamentarism as principle of representative democracy 1. Special place of parliament in constitutional structure: representation of nation and deliberation; 2. Special status of MP; 3. Legislation (including aprov. budget); 4. Scrutiny of government; 5. Nomination powers. 6. Three concepts of parliament

3 concepts of parliamentarism: 1) sovereign (UK) 2) “atributive” power (Fr) and 3) primus

3 concepts of parliamentarism: 1) sovereign (UK) 2) “atributive” power (Fr) and 3) primus inter pares inside strong division of powers (USA)

Remuneration of MP - 1566 L. Statute; - 1922 Constitution; - 1992 Constitution: Art.

Remuneration of MP - 1566 L. Statute; - 1922 Constitution; - 1992 Constitution: Art. 60: The work of the MPs, as well as all expenses relating to their parliamentary activities, shall be remunerated from the State Budget. A Member of the Seimas may not receive any other remuneration, with the exception of remuneration for creative activities

Special place of Seimas in historic constitutional structure 1791, 1922, 1992 Constitutions: - primus

Special place of Seimas in historic constitutional structure 1791, 1922, 1992 Constitutions: - primus inter pares; - place of deliberation; - representation of nation.

Immunity of MP under 1992 Constitution 1. Consent of the Seimas for criminal proceedings;

Immunity of MP under 1992 Constitution 1. Consent of the Seimas for criminal proceedings; 2. Impeachment procedure in order to remove MP (A. Butkevičius 1998; L. Karalius and A. Sacharukas 2011; N. Venckienė 2014).

Legislation under 1992 C - Initiative from the Government (MP and Pr); - 3

Legislation under 1992 C - Initiative from the Government (MP and Pr); - 3 readings in the Parliament; - quorum of ½ (71) of attendance is required; - organic (qualified) laws: 3/5 th majority? - (C Amendments: double votum of 2/3 MPs)

Parliamentary srutiny of government: - Vote of no confidence (for minister, PM and government)

Parliamentary srutiny of government: - Vote of no confidence (for minister, PM and government) by majority of MPs; - Interpellation procedure; - Scrutiny of ministry by appropriate parliamentary committee; - Instrument of „governmental hour“: questions to ministers during public sittings

Parliamentarism under Lithuanian Constitution Art. 5: In Lithuania, state public power shall be executed

Parliamentarism under Lithuanian Constitution Art. 5: In Lithuania, state public power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary; Art. 33: Citizens shall have the right to participate in the governance of their State directly and through their democratically elected representatives; Art. 67: The Seimas shall pass laws… Art. : 67: shall supervise the activities of the Government Art. 67: shall appoint the justices of the Supreme and Constitutional courts, Auditor General, Chief of the Bank of Lithuania, members of Centr. elect. Commiss.

Parliamentary elections - 1566 L. Statute and 1791 Constitution: two representatives from local adm.

Parliamentary elections - 1566 L. Statute and 1791 Constitution: two representatives from local adm. unite; Senate – ex officio nominations by monarch; - 1922 Constitution – proportional electoral system to the unicameral parliament; - 1992 Constitution – mixed electoral system to the unicameral parliament: 71 districts for majority system; 70 MPs – using proportional system.

Political party holding Prime minister’s office from 1990 -1992 – Sąjūdis (centre-right); 1992 -1996

Political party holding Prime minister’s office from 1990 -1992 – Sąjūdis (centre-right); 1992 -1996 – LDDP (former Communists); 1996 -2000 – Conservatives; 2000 -2004 – Social-democrats; 2004 -2008 – Social-democrats; 2008 -2012 – Conservatives; 2012 -2016 – Social democrats; 2016 -2020 – Farmers-greens

Task for the class on three constitutional values: Prepare PP presentation on three constitutional

Task for the class on three constitutional values: Prepare PP presentation on three constitutional values of your own constituion

(inviolable) constitutional values under Western legal tradition as constitutional essentials? Rule of law Democracy

(inviolable) constitutional values under Western legal tradition as constitutional essentials? Rule of law Democracy Human rights

Human rights as concept - Human rights as constitutional value - Concept of natural

Human rights as concept - Human rights as constitutional value - Concept of natural and fundamental rights; - Concept of rights and duties; - Constitutional and ordinary rights; - Limits of rights: other, public interest… - Classification of rights: unalienable rights; constitutional and ordinary rights; personal, civic-political and socio-economic-cultural rights;

Two expansion eras of human rights - XVIII century Enlightment era: 1789 Declaration and

Two expansion eras of human rights - XVIII century Enlightment era: 1789 Declaration and 1791 Bill of Rights; - XX century Modern era: 1948 Universal declaration, 1950 European Convention of HR and 2000 EU charter on HR

Classification of human right under Lithuanian Constitution - Personal constitutional rights: to life, personal

Classification of human right under Lithuanian Constitution - Personal constitutional rights: to life, personal freedom (habeas corpus), private life, property, freedom of speech and convictions, freedom of movement. . . - Political constitutional rights: active and passive electoral rights, petition, right to criticize government, right to civil service, right to association, to be member of political party and trade union, right to strike; - Social constitutional rights: to education, to elderly and disabled pension, right to medical care, right to employment and vocations. . .

Natural (inborn) rights under Lithuanian Constitution Art. 18. Human rights and freedoms should be

Natural (inborn) rights under Lithuanian Constitution Art. 18. Human rights and freedoms should be natural (inborn).

Absolute (unalianable) rights, which may not be limited - 1998 Constitutional court ruling: right

Absolute (unalianable) rights, which may not be limited - 1998 Constitutional court ruling: right life is an absolute right, a mistake might not be corrected, therefore capitol punishment violates; - Art. 21: It shall be prohibited to torture or injure a human being, degrade his dignity, subject him to cruel treatment, or to establish such punishments. - Art. 3: each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force.

Personal rights under Lithuanian Constitution: Art. 19. Human right to life shall be protected

Personal rights under Lithuanian Constitution: Art. 19. Human right to life shall be protected by law. Art. 20. Nobody may be arbitrary arrested. Art. 21. It shall be prohibited to torture or injure a human being, degrade his dignity, subject him to cruel treatment Art. 25. Everyone shall have the right to have his own convictions and freely express them. Art. 32. Citizens may move and choose their place of residence in Lithuania freely and may leave it freely. Art. 38. Marriage shall be concluded upon the free mutual consent of man and woman. Art. 53. The procedure for providing medical aid to citizens free of charge at state medical establishments shall be established by law.

Privacy rights are not constitutional in Lithuania - Abortion (till the 1 st trimester)

Privacy rights are not constitutional in Lithuania - Abortion (till the 1 st trimester) is legal under 1994 by-law of Health minister; - Euthanasia is illegal; - Gender reassignment is not fully recognized: L v. Lithuanian (2007) – personal code problem

Political (civil) rights Art. 33. Citizens shall have the right to participate in the

Political (civil) rights Art. 33. Citizens shall have the right to participate in the governance of their State both directly and through their democratically elected representative. Art. 33. Citizens shall be guaranteed the right to criticise public institutions. Art. 35. Citizens shall be guaranteed the right to freely form societies, political parties and associations. Art. 36. Citizens may not be prohibited from assembling unarmed in peaceful meetings. Art. 50. Trade unions shall be established freely and shall function independently. Art. 51. While defending their economic and social interests, employees shall have the right to strike.

Socio-economic-cultural rights Art. 23. Property shall be inviolable. Art. 39. The law shall grant

Socio-economic-cultural rights Art. 23. Property shall be inviolable. Art. 39. The law shall grant for working mothers paid leave before and after childbirth. Art. 41. Education at public schools shall be free of charge. Citizens who are good at their studies at public universities shall be guaranteed education for free of ch. Art. 42. Culture, science, research, teaching shall be free. Art. 48. Everyone may freely choose a job or business and have proper, safe, and healthy conditions at work, as well as to receive fair pay for work and social security in the event of unemployment. Art. 50. The State shall guarantee its citizens the right to receive old-age and disability pensions.

Sovereign powers: law, state, people and human being (dignity)

Sovereign powers: law, state, people and human being (dignity)

State as sovereign idea - politea, civis, res publica, imperia, regnum, monarchy, state, federal

State as sovereign idea - politea, civis, res publica, imperia, regnum, monarchy, state, federal state (lander), EU… 1. State as sovereign hobsian leviathan and pure public power; 2. Elements of national state: territory, people (nation) p. power, independence; 3. Legal, democratic, social, secular, federal… 4. Independence (independence acts); 5. Symbols: flag, coat of arms, anthem etc…

State in Lithuanian Constitution - Art. 84: “President shall, in the event of an

State in Lithuanian Constitution - Art. 84: “President shall, in the event of an armed attack threatening the sovereignty of the State, adopt decisions concerning defence against the armed aggression […]”. - Art. 5: “state power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary” - “State” in the Constitution also appears as “Lithuania” and “Republic”.

Law (rule of law) as sovereign idea - rule of law also means it’s

Law (rule of law) as sovereign idea - rule of law also means it’s priority over state; - rule of law v. rule of man; - Constitution as incarnation of law (rule of law). . .

Law (constitution) as sovereign power in Lithuanian Constitution - Art. 28: Implementing his rights,

Law (constitution) as sovereign power in Lithuanian Constitution - Art. 28: Implementing his rights, everyone must observe the Constitution and laws […]. - Art. 29: All persons shall be equal before the law - Art. 5: The scope of public power shall be limited by the Constitution.

People as sovereign power in Lithuanian Constitution Art. 2: The State of Lithuania shall

People as sovereign power in Lithuanian Constitution Art. 2: The State of Lithuania shall be created by the nation (people). Sovereignty shall belong to the nation (people). Art. 5: State institutions shall serve the people;

Human rights as sovereign idea under Lithuanian Constitution Art. 18: human rights and freedoms

Human rights as sovereign idea under Lithuanian Constitution Art. 18: human rights and freedoms shall be natural (innate).

Assignment: PP presentation: how these sovereign powers are reflected in your Constitution

Assignment: PP presentation: how these sovereign powers are reflected in your Constitution

Autonomous constitutional authorities: local government, university, church

Autonomous constitutional authorities: local government, university, church

Local government as European heritage - Athens and Rome as Ancient European heritage; -

Local government as European heritage - Athens and Rome as Ancient European heritage; - Magdeburg rights in Middle ages; - Modern local government and municipality and its autonomy;

Autonomy of local government in Lithuanian Constitution, Chapter X: Art. 118: The right to

Autonomy of local government in Lithuanian Constitution, Chapter X: Art. 118: The right to self-government shall be guaranteed to the administrative territorial units of the State, which are provided for by law; Art. 120: The State shall support municipalities. Municipalities shall act freely and independently within their competence defined by the Constitution and laws; Art. 121: Municipalities shall draft and approve their budgets. (Direct elected) municipal councils shall have the right, within the limits and according to the procedure provided for by law,

University as European heritage - Academy of Aristotle; - Medieval (Catholic) Universities (students’ or

University as European heritage - Academy of Aristotle; - Medieval (Catholic) Universities (students’ or teachers’ schools of education); - Modern private and public Universities

Universities in Lithuanian Constitution Art. 40: Schools of higher education shall be granted autonomy.

Universities in Lithuanian Constitution Art. 40: Schools of higher education shall be granted autonomy. The State shall supervise the activities of establishments of teaching and education.

State and Church separation in concept of constitutionalism • Does separation of Church means

State and Church separation in concept of constitutionalism • Does separation of Church means it’s legal autonomy?

Three main models of secular state in Western legal tradition - Establishment or state

Three main models of secular state in Western legal tradition - Establishment or state church (UK, Greece); - Strong separation (France); - Cooperation (Germany)

Lithuanian model of state-church separation • Lithuanian constitutional principle of secular state (liet. pasaulietiškumas):

Lithuanian model of state-church separation • Lithuanian constitutional principle of secular state (liet. pasaulietiškumas): - no establishment rule, but “traditional and recognised religious communities”; - secularity as cooperation v. laicism as strong separation

Lithuanian draft-constitutions on religion - Former communists’ draft – strong separation; - Other drafts

Lithuanian draft-constitutions on religion - Former communists’ draft – strong separation; - Other drafts – cooperation between states and church - Art. 43 of the 1992 Constitution (concept of „traditional religiuos communities“) – from 1938 Constitution

Art. 43 of the Constitution 1. State shall recognise the churches and religious organisations

Art. 43 of the Constitution 1. State shall recognise the churches and religious organisations that are traditional in Lithuania, whereas other churches and religious organisations shall be recognised provided that they have support in society and their teaching and practices are not in conflict with the law and public morals. 3. Churches and religious organisations shall be free to proclaim their teaching, perform their practices, and have houses of prayer, charity establishments, and schools for the training of the clergy. 5. The status of churches and other religious organisations in the State shall be established by agreement or by law. 7. There shall not be a State religion in Lithuania.

Law on Religious communities: 9 traditional religious communities (at least from XVII century): -

Law on Religious communities: 9 traditional religious communities (at least from XVII century): - Roman Catholic church (80%); Orthodox church (Moscow patriarchate) (6%); Lutherans (3%); Evangelic reformats (2%); Old believers orthodox church; Greek Catholic church; Tatars – Sunni Muslims; Jewish; Karaits (karaimai).

State and Church Art. 40: Education in public schools shall be secular. At the

State and Church Art. 40: Education in public schools shall be secular. At the request of parents, classes of religion schall be provided. Art. 43: 3. Marriage shall be concluded upon the free mutual consent of man and woman. 4. The State shall also recognise registration of marriages in the churche.

Privileges of traditional religious communities: - Donations from state budget (restitution); Public TV and

Privileges of traditional religious communities: - Donations from state budget (restitution); Public TV and Radio broadcast; Religious classes at public schools; Recognition of religious marriages; Chaplains at hospitals, prisons, army, universities; - Exceptions of clergy from military service and facts disclosure under criminal proceedings; - But obligation to do military service (according to July, 4, 2017 ruling of Lithuanian CC)? : )

VI. Head of state: double constitutional status

VI. Head of state: double constitutional status

Requirements for the President to be elected 1993 A. Brazauskas; 1998 V. Adamkus; 2003

Requirements for the President to be elected 1993 A. Brazauskas; 1998 V. Adamkus; 2003 R. Paksas (impeachment); 2004 V. Adamkus; 2009/2014 D. Grybauskaitė). Requirements for candidates: - 40 years old; - without an “oath to a foreign country“ (Adamkus); - three (last) years of settlement (Adamkus, Grybauskaitė); - Lithuanian citizenship “by origin“ (Tomaševski);

Prezidentūra - Chancellery - no vice-president; - 6 -7 principal advisers (the President's team)

Prezidentūra - Chancellery - no vice-president; - 6 -7 principal advisers (the President's team) ~ 40 civil servants of personal confidence; ~ 40 career civil servants; ~ 40 technical personnel.

Double status of President as head of state: a) representative of state (sovereign); b)

Double status of President as head of state: a) representative of state (sovereign); b) highest executive authority.

a) President as executive officer: Art. 5 -C: In Lithuania public power shall be

a) President as executive officer: Art. 5 -C: In Lithuania public power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary: - Art. 85: The President implementing the powers vested in him, shall issue decrees.

b) Former sovereign-monarch‘s powers (President of the Republic or State): - Commander in chief;

b) Former sovereign-monarch‘s powers (President of the Republic or State): - Commander in chief; - Declaration of war, emergency and mobilization - Participation in legislative procedure: initiative, promulgation and veto; - Dissolution of parliament; - Participation in judicial powers: grant of grace; - grant of citizenship; - Nominations of highest public officials, including judges; - Competence in foreign policy

President’s legislative powers: - Legislative initiative (about 5% of bills); - Promulgation of laws;

President’s legislative powers: - Legislative initiative (about 5% of bills); - Promulgation of laws; - Suspensive veto

Suspensive veto of the President - must be reasoned (with or without a draft)

Suspensive veto of the President - must be reasoned (with or without a draft) no “pocket veto” (law must be promulgated); - 1/2 MPs requirement to overcome it; - rather rare; - no power of reference to the Constitutional Court before the promulgation.

President's powers to dissolve the Seimas In case of conflict between Gov. and Parliam:

President's powers to dissolve the Seimas In case of conflict between Gov. and Parliam: i) after vote of no confidence of Government; ii) if Parliament does not approve the Government's program. Has never happened since 1990…

President nominates: - Members of Cabinet of ministers (PM Vagnorius in 1999 and FA

President nominates: - Members of Cabinet of ministers (PM Vagnorius in 1999 and FA minister Ušackas in 2010); - Judiciary (lower and higher); - Diplomatic corpus; - High military officers; - High police and security officers

Impeachment of the President under Lithuanian Constitution 3 wrongdoings for impeachment: i) gross violation

Impeachment of the President under Lithuanian Constitution 3 wrongdoings for impeachment: i) gross violation of the Constitution = ii) breach of the oath of the office; iii) commitment of the criminal offense ?

Procedural steps (mixed model): i) formation of ad hoc parliamentary committee formulation of imp.

Procedural steps (mixed model): i) formation of ad hoc parliamentary committee formulation of imp. charges; ii) approval of charges in the Parliament; iii) appointment of parliamentary prosecutors; iv) addressing the charges to Const. Court; v) conclusions of the Constitutional Court; vi) legal submissions by the parties; vii) closing statement of the President; viii) voting in the Parliament for removal.

Impeachment of the President R. Paksas, 2004: - Impeachment institution: Parliament or CC? -

Impeachment of the President R. Paksas, 2004: - Impeachment institution: Parliament or CC? - Impeachment majority: (3/5 of MPs) - Consequences of impeachment (CC): 1) may not hold the title of “President”; no residence; no presidential pension; 2) may never stand as a candidate for presidential/parliamentary elections (but 6 -01 -2011 judgement of ECt. HR: time limit for parliamentary eligibility ban should be adopted, because ban for life is unproportional limitation of one‘s eligibility rights).

Impeachment charges of the President Rolandas Paksas, 2004 1) on behalf of his former

Impeachment charges of the President Rolandas Paksas, 2004 1) on behalf of his former private company has used some pressure to take possession of other company shares; 2) Illicitly granted Lithuanian citizenship for his major financial supporter Russian businessman Mr. Jury Borisov. 3) Presumptively revealed for Mr. J. Borisov that he is under supervision of security police.

Assignment: - Double status of head of state in your constitution? ; - Impeachment

Assignment: - Double status of head of state in your constitution? ; - Impeachment procedure in your constitution?

VII. The Constitutional court as representative of Constitution - Nature; Title; Composition; Judges v.

VII. The Constitutional court as representative of Constitution - Nature; Title; Composition; Judges v. members; Term of tenure; Appointments; Age, women; Some provisions of Lithuanian Constitution

Nature, place of constitutional court and its composition Constitutional Court has double nature: 1)

Nature, place of constitutional court and its composition Constitutional Court has double nature: 1) it is a judicial body – “a court” and it’s relationship with judicial system lies in courts’ competence to address their case to it for constitutional review 2) CC is above (or apart) of judicial system, for it’s task is to guarantee supremacy of Constitution (as sovereign) and “speak” on behalf of it…

Title “C. Court” – in majority cases; “C. Tribunal” – Andora, Spain, Portugal, Poland;

Title “C. Court” – in majority cases; “C. Tribunal” – Andora, Spain, Portugal, Poland; “C. Council” – France; Kazakhstan constitutional justices v. members of CC

Constitutional court’s place within the institutional structure Real place depends very much on the

Constitutional court’s place within the institutional structure Real place depends very much on the real authority it succeeded to grow up during its existence: - German CC v. Belorussian CC; - Lithuanian CC v. Russian CC; - Judicial activism? . .

Composition of constitutional courts As a rule, some part of judges of constitutional court

Composition of constitutional courts As a rule, some part of judges of constitutional court are appointed from university professors

Number of constitutional justices 19 (Russia); 18 (Ukraine) 16 (Germany); 15 (Italy, Czech Republic,

Number of constitutional justices 19 (Russia); 18 (Ukraine) 16 (Germany); 15 (Italy, Czech Republic, Poland) 14 + 6 substitute judges (Austria); 13 (Portugal, Slovakia) 12 (Belgium, Spain, Bulgaria, ) 11 (Croatia, Hungary, Turkey) 10 (Azerbaijan) 9 (Albania, Armenia, BH, Lt, Fr, Georgia, Romania, Serbia, Slovenia, Macedonia) 7 (Latvia, Montenegro, Kazakhstan ) 6 (Moldova)

Term of tenure For life (Austria, Belgium, Turkey); For 15 years (Serbia) For 12

Term of tenure For life (Austria, Belgium, Turkey); For 15 years (Serbia) For 12 years (Germany, Albania, Russia, Slovak. ) For 10 years (Czech Republic, Latvia); For 9 years (Armenia, Italy, France, Lithuania, Poland, Spain, Macedonia, Montenegro, Slovenia, Romania, Ukraine); For 8 years (Poland, Croatia) For 6 years (Portugal).

Appointments of c. judges So called “mixed” procedure: - by the Parliament, the Head

Appointments of c. judges So called “mixed” procedure: - by the Parliament, the Head of State or by all three public powers.

Age of constitutional judges Georgia ~ 45 Latvia, Lithuania, Albania ~ 50 Germany, Serbia,

Age of constitutional judges Georgia ~ 45 Latvia, Lithuania, Albania ~ 50 Germany, Serbia, Macedonia, Azerbaijan: ~ 55, Austria, Portugal, Poland: ~ 58, Russia, Ukraine, Moldova, Kazakhstan, Belgium, Hungary, Bulgaria, Romania, Slovak R, Turkey: ~ 60 Czech Republic ~ 65, Spain: ~ 68, France: ~ 70, Italy: ~74.

Women in Constitutional courts - Belgium, Kazakhstan and Azerbaijan: 1 - Turkey, Spain, Poland,

Women in Constitutional courts - Belgium, Kazakhstan and Azerbaijan: 1 - Turkey, Spain, Poland, Romania, Chech R. 2; - Moldova, Latvia, Hungary, France, Italy, Georgia 3 - Lithuania Austria, Slovak R, Macedonia, Portugal, Bulgaria: 4 - Croatia, Serbia: 5 - Germany: 7 of 16

Spread of CCs in Europe 90’s – Central Eastern Europe; ~ 2000 – Georgia,

Spread of CCs in Europe 90’s – Central Eastern Europe; ~ 2000 – Georgia, Armenia, Azerbaijan, Ukraine; 2007 – Belgium; 2011 – France. . .

Some historic. reasons for enthusiasm towards the constit. justice in CEE after the collapse

Some historic. reasons for enthusiasm towards the constit. justice in CEE after the collapse of the Communist regime: - authoritarian past and big hunger for democracy and rule of law; - strong wish for decentralisation and division of public power; - distrust of ability for sole political power in safeguarding democracy / fear of abuse of public power by executive & legislature; - wish to gradually change the judicial corpus of ancient (communist) regime;

European countries, which do not have Constitutional courts: UK, Northern countries (Dk, Se, No,

European countries, which do not have Constitutional courts: UK, Northern countries (Dk, Se, No, Fi, Ie), Estonia, Greece, Switzerland, the Netherlands, Luxemburg.

Why Kelsenian model in CEE? Hans Kelsen’s model: a posteriori constitutional-judicial review of parliamentary

Why Kelsenian model in CEE? Hans Kelsen’s model: a posteriori constitutional-judicial review of parliamentary statutes initiated by ordinary courts together with abstract review: - Interwar Austrian and Czechoslovakian ex. - Postwar German example; - Recent Spanish and Portuguese examples after re-establishing democracy in 80 -ies.

Lithuanian Constitutional Court

Lithuanian Constitutional Court

Lithuanian Constitutional Court 1. Nominations, composition and term of office; 2. Who may address;

Lithuanian Constitutional Court 1. Nominations, composition and term of office; 2. Who may address; 3. Competences.

Art. 103 of Constitution The Constitutional Court shall consist of 9 justices, each appointed

Art. 103 of Constitution The Constitutional Court shall consist of 9 justices, each appointed for a single nine-year term of office. Every three years, one-third of the Constitutional Court shall be reconstituted. The Seimas shall appoint candidates … submitted by the President of the Republic, the Speaker of the Seimas, and the Chief justice of the Supreme Court. The citizens of the Republic of Lithuania with an impeccable reputation, higher education in law, and not less than a 10 -year length of service in the field of law or in a branch of science and education as a lawyer may be appointed as justices of the Constitutional Court.

Art. 106 The Government, not less than 1/5 of all the Members of the

Art. 106 The Government, not less than 1/5 of all the Members of the Seimas, and courts shall have the right to apply to the Constitutional Court… President of the Republic, shall have the right to apply to the Constitutional Court concerning the conformity of the acts of the Government with the Constitution and laws…

Art. 105 The Constitutional Court shall consider constitutionality of legislation, acts of President and

Art. 105 The Constitutional Court shall consider constitutionality of legislation, acts of President and Government. The Constitutional Court shall also issue conclusions on: 1) the violations of election laws during the elections (Parliamentary and Presidential) (8); 2) on health of the President …; 3) constitutionality of international treaties (1); 4) whether actions of officials under impeachment are in conflict with Constitution (5).

Double status of Lithuanian Constitutional Court - Considers whether the laws are in conflict

Double status of Lithuanian Constitutional Court - Considers whether the laws are in conflict with Constitution; - By name it is a “court” with “judges”; - The limitations established on work and political activities for the judges of courts shall also apply to the judges of the Constitutional Court (Art. 104).

Double status of Lithuanian Constitutional Court Representative of (sovereign) Constitution - Considers whether the

Double status of Lithuanian Constitutional Court Representative of (sovereign) Constitution - Considers whether the laws are in conflict with Constitution. Judicial body - The limitations established on work and political activities for the judges of courts shall also apply to the judges of the Constitutional Court (Art. 104) - Its name is a “court” with “judges”…

Assignment PPP: describe double status of Constitutional Court as reflected in your Constitution

Assignment PPP: describe double status of Constitutional Court as reflected in your Constitution

EU integration as constitutional principal: constitutionalisation of EU law & europeanisation of constitutional law

EU integration as constitutional principal: constitutionalisation of EU law & europeanisation of constitutional law In the light of three main constitutional values: rule of law; democracy and human rights.

Statehood as element of constitution under EU integration 3 elements of national state (under

Statehood as element of constitution under EU integration 3 elements of national state (under international and constitutional law): - People (European demos as „peoples of Europe“, European citizenship etc. . . ); - Public power (EU clauses in constitution, Europe/EU as new sovereign); - Territory (Schengen area).

3 constitutional values (under European integration) - Rule of law: EU law primacy clause

3 constitutional values (under European integration) - Rule of law: EU law primacy clause and EU as quasi-federal state); - Democracy: European demos + European elections+ European Parliament - Human rights: ECHR and Europ. Charter / Strasbourg and Luxembourg courts (right to private life and non-discrimination principle)

2004 Constitutional act on Lithuania’s membership in the EU 1. Rule of law: European

2004 Constitutional act on Lithuania’s membership in the EU 1. Rule of law: European supremacy clause The norms of EU law shall be a constituent part of the legal system of the Republic of Lithuania. Where it concerns the founding Treaties of the European Union, the norms of EU law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.

2004 Constitutional act on Lithuania’s membership in the EU 2. Rule of law –

2004 Constitutional act on Lithuania’s membership in the EU 2. Rule of law – European Union as new co-sovereign: The Republic of Lithuania as a MS of the EU shall share with or confer on the European Union the competences of its State institutions in the areas provided for in the founding Treaties of the EU and to the extent it would, together with the other Member States of the EU, jointly meet its membership commitments in those areas as well as enjoy the membership rights.

2004 Constitutional act on Lithuania’s membership in the EU 2. (European) Parliamentarism clause –

2004 Constitutional act on Lithuania’s membership in the EU 2. (European) Parliamentarism clause – The Government shall inform the Seimas about the proposals to adopt acts of EU law. As regards the proposals to adopt the acts of EU law regulating the areas which […] are related to the competences of the Seimas, the Government shall consult the Seimas may recommend to the Government a position of the Republic of Lithuania in respect of these proposals.

Membership in EU as contribution to better secure human rights: Preamble of 2004 Constitutional

Membership in EU as contribution to better secure human rights: Preamble of 2004 Constitutional act on Lithuania’s membership in the EU: […]expressing its conviction that the EU respects human rights and fundamental freedoms and that Lithuanian membership in the EU will contribute to the more efficient securing of human rights and freedoms…

Assignment PPP: European integration as reflected in your Constitution in the light of three

Assignment PPP: European integration as reflected in your Constitution in the light of three constitutional values