Constitutional Justice in Transitional Democracy: Successes and Challenges of Constitutional Review in Lithuania
Prof. Dr. Dainius Žalimas
President of the Constitutional Court of the Republic of Lithuania
Professor at Law Faculty, Vilnius University
The term “transitional democracy” implies the process of democratic consolidation, which concludes when democracy becomes, to cite a well-known metaphor, “the only game in town”. The notion of a consolidated democracy is inseparable from such elements as free and fair elections, respect for human rights, and the observance of the requirements of the rule of law. Taking into account that it is extremely difficult (if not impossible) to fully achieve all the criteria (given their progressively evolving nature), states are considered “consolidated democracies” when these criteria are satisfied for the most part.
There might be different opinions as to when democratic transition in Lithuania was concluded. However, it is obvious that it would no longer be reasonable to speak about transition after Lithuania’s integration into the European Union and NATO. Thus, the year 2004 might be perceived as a significant landmark, completing the process of Lithuania’s transition towards a consolidated democracy. It should be underlined that democratic transition cannot be an eternally continuing process; likewise, a state should not be considered a “transitional” or “new” democracy for two decades.
The development of constitutionalism is a continuous process. Certain challenges that emerged during the transitional period have continuous implications or, due to new developments, acquire new forms. Therefore, by placing emphasis on the transitional period, I would like to present a general overview (not strictly limited to the period of democratic transition) of the main challenges and successes of constitutional review in Lithuania.
Due to the fact that the Constitution of 1992 has, for the first time in the history of Lithuania, established a body of judicial constitutional review, i.e. the Constitutional Court, the main challenges were related, firstly, to consolidating the authority of the Constitutional Court as the guarantor of the Constitution and, secondly, to laying foundations for the constitution-centric concept of the Lithuanian legal system.
After the restoration of Lithuania’s independence, the attitude that the Constitution was a fundamental statute (основной закон) still prevailed: the Constitution was regarded as one of many other statutes and laws, differing only in its political content. Constitutional law was viewed as merely another branch of law, known as state law. Therefore, the consolidation of the genuine supremacy of the Constitution was the first challenge to constitutional review. Accordingly, the Constitutional Court gradually developed the constitution-centric concept of the Lithuanian legal system, which encompasses three main elements. Firstly, the Constitution is not a fundamental statute. It cannot be measured or perceived by the same criteria as ordinary (statutory) law. The Constitution has to be perceived as supreme law; all other legal acts must comply with it. It is law, not a statute. Secondly, there are only a few sources of the Constitution (constitutional law): the text of the Constitution and the acts of the Constitutional Court providing the official and binding interpretation of the text of the Constitution (the official constitutional doctrine). To some extent, insofar as foreseen by the Constitution itself, international law and the law of the European Union can also be regarded as sources of constitutional law. Thirdly, the Constitution is perceived as law comprising not only the text, but also the spirit of the Constitution (the overall constitutional regulation, including both expressly established and implied constitutional provisions and principles, as well as values protected by the Constitution).
The second challenge to constitutional justice was to formulate the foundations of the official constitutional doctrine on different aspects of the democratic system of the state. By examining cases concerning the interrelations of state powers and the competence of state institutions, the Constitutional Court elaborated the basic elements of the doctrine on the separation of powers, the independence of judges and courts, the protection of human rights and other elements of the framework of the state. For example, the Constitutional Court had to clarify the form of government of the Lithuanian state. In the ruling of 10 January 1998, the Constitutional Court held that, according to the distribution of governmental authority enshrined in the Constitution, Lithuania should be considered a parliamentary republic with some inherent aspects of semi-presidentialism.
The Court had also to adjudicate cases related to the reform of the Lithuanian legal system. One of the major tasks in this context was the consolidation of the principle of the independence of judges and courts. For example, the Constitutional Court ruled that general supervision carried out by prosecutors, who were granted the right to give conclusions for courts concerning the merits of a case in civil proceedings, was incompatible with the constitutional mission of the prosecutors and interfered with the powers of the judiciary. In another case, the Constitutional Court ruled on the unconstitutionality of the statutory provisions that had created the preconditions for interference by the executive branch (the Minister of Justice) with the appointment of judges and, at the same time, with the activity of courts. The Constitutional Court identified the main guarantees of the independence of judges and courts, including the inviolability of the term of their office and the financial, material, and organisational guarantees.
Constitutional review also played a substantive role in consolidating the protection of human rights. As early as in 1995, the Constitutional Court held that, in a democratic society, priority is to be given to an individual; therefore, all limitations on fundamental human rights and freedoms must be regulated by laws and not by legal acts of lower force. The process of restitution of private property and the need to apply European standards based on respect for human rights determined that the Constitutional Court had to consider more than one case related to the constitutional protection of ownership and the content of the right to a fair trial. However, during the transitional period, the most important case in relation to human rights was the one in which the ruling abolishing the death penalty in Lithuania was adopted. The unconstitutionality of this penalty was substantiated by the necessity to defend innate human rights, in particular the right to life and dignity, as well as by the advanced development of international law, i.e. the emerging European standard towards the abolition of the death penalty.
The case on the abolition of the death penalty was linked to the third challenge to constitutional review: the clarification of the interrelation between the Constitution and international law. The constitutional jurisprudence of the transitional period laid the foundations for the openness of the Constitution to international law. The Constitutional Court’s conclusion of 24 January 1995 concerning the compliance of certain provisions of the European Convention on Human Rights with the Lithuanian Constitution is relevant in this context. The Constitutional Court held that, in setting human rights standards, the Convention as a special source of international law plays the same role as the Constitution. In the case on the abolition of the death penalty, emphasis was placed on the importance of the principle pacta sunt servanda and Lithuania’s openness to and integration into the international community. Therefore, the state cannot apply lower standards to its citizens compared to those established by international law. Thus, the Court formulated the principle that international legal rules, in particular in the field of human rights, should be considered the necessary constitutional minimum for national law.
In a similar manner, the Constitutional Court had to deal with the questions concerning the relationship between national constitutional law and European Union law. From the present-day perspective, it can be stated that the Constitutional Court managed to reconcile the constitution-centric concept of the Lithuanian legal system with the constitutional imperative of a full-fledged membership in the European Union.
In the case law of the Constitutional Court, European Union law and international law are presumed to be compatible with the Constitution. Moreover, according to the official constitutional doctrine concerning the constitutionality of constitutional amendments, the Constitution does not permit any such amendments to the Constitution that would deny the international obligations of the Republic of Lithuania, as long as these international obligations are not renounced in accordance with the norms of international law. Such a favourable approach towards international obligations has created the preconditions for the consolidation of the constitutional identity of Lithuania as an open European state and a member of the community of democratic states.
With regard to the challenges characteristic of transitional democracy, it can be claimed that the consolidation of the principle of the separation of powers, the supremacy of the Constitution and the protection of human rights is related to the elimination of the consequences of the Soviet occupation regime. It is also possible to speak about the direct challenge to combat the legacy of the past. In particular, the Constitutional Court had to deal with the constitutionality of the regulation of the lustration process. In addition, the disclosed instances of political corruption led to cases concerning the constitutional responsibility of the highest-level state officials. In both types of cases, the Constitutional Court underlined the significance of the loyalty and trustworthiness of public officials to the State and its constitutional order. So far, the Constitutional Court has given conclusions regarding the actions of four persons in the context of impeachment proceedings, including a former President of the Republic.
Nevertheless, the challenges that are related to the varied range of issues faced by the Constitutional Court are positive ones: they are conducive to the development of constitutionalism and testify to the importance of constitutional review. All these challenges are interrelated and lead to the consolidation of the rule of law.
The Constitutional Court also encountered certain negative challenges, such as attempts to diminish its independence. These attempts can be associated with the fact that part of politicians treats constitutional review as undesirable restriction on the powers of the Parliament. To a certain extent, this is also the legacy of the past – during the Soviet occupation regime, the ruling communist party had been above any judicial control.
For example, after the adoption of certain rulings by the Constitutional Court, there were repeated public calls to follow the example of Hungary, which limited the powers of its Constitutional Court to adopt decisions on budget formation and tax policy issues in 2010. More than once, proposals were voiced to prohibit the Constitutional Court from interfering with the fiscal measures applied by the Government during the times of economic hardship.
In 2013–2014, a number of draft laws were passed with the aim of limiting the powers of the Constitutional Court or otherwise encumbering its activities. Some of these initiatives resemble those undertaken in Georgia and Poland. To mention just a few examples, there was the proposal to introduce a quorum of 8 out of 9 justices required for considering cases and adopting the rulings and other final acts of the Constitutional Court; the proposal to disclose publicly the results of voting in adopting rulings; and the proposal to provide that the rulings of the Constitutional Court come into effect following their implementation by the Parliament.
However, none of the aforementioned initiatives (mostly introduced by populist politicians) have been implemented. Thus, they cannot be viewed as posing a direct threat to the institutional independence of the Constitutional Court.
Actually, different factors demonstrate the consolidated authority of constitutional review performed by the Constitutional Court. Among the most important factors, the effective implementation of the rulings of the Constitutional Court can be mentioned. As of 1 September 2016, only 8 percent of the rulings of the Constitutional Court were pending implementation.
I would like to conclude that the tasks and challenges faced by the Constitutional Court of the Republic of Lithuania are, to a great extent, dependent on a specific period and the matters of relevant concern during the given period. Following the restoration of the independence of Lithuania, the Lithuanian Constitutional Court was involved in the formation of a principally and qualitatively new concept of law based on the real supremacy of the Constitution. Lithuania’s integration into the European Union determined the necessity to identify the constitutionally grounded ways of harmonising the undertaken obligations with the Constitution. While performing the constitutional functions assigned to it, the Constitutional Court is under the obligation to defend the democratic order laid down in the Constitution and, thereby, to contribute to the creation of a stable and effective democracy.
Hopefully, in Lithuania the period of transition has been successfully completed. Most importantly, the Constitutional Court was not only established, but it also managed to remain independent from any political influence. Therefore, I am particularly concerned about our colleagues from Poland, Georgia, and some other European constitutional courts struggling with the challenge to safeguard and preserve the independence and status they had gained through decades of hard work. It is even more upsetting when in other cases we witness that such independence is voluntarily given up.
 This report was delivered at an international conference “Constitutional Justice in Transitional Democracy: Success and Challenges of Constitutional Review in Georgia and Eastern Europe”, which took place in Batumi on 9–12 September 2016. This conference was organised by the Constitutional Court of Georgia on the occasion of the 20th anniversary of its activity.
 Linz, J., Stepan, A. Toward Consolidated Democracies. In: The Global Divergence of Democracies. Ed. by Diamond, L., Plattner, M. Baltimore, London: John Hopkins University Press, 2001, p. 94.
 The Constitutional Court’s ruling of 10 January 1998 on the Programme of the Government of the Republic of Lithuania. Note: all the rulings referred to in this report are available in English on the website of the Constitutional Court of the Republic of Lithuania, <http://www.lrkt.lt/en/court-acts/rulings-conclusions-decisions/171/y2016>.
 The Constitutional Court’s ruling of 14 February 1994 on the supervision carried out by the prosecution in the civil procedure.
 The Constitutional Court’s ruling of 21 December 1999 on the procedure for appointing judges and on other norms of the Law on Courts.
 The Constitutional Court’s ruling of 26 October 1995 on the restoration of the ownership rights of citizens to land.
 The Constitutional Court’s ruling of 9 December 1995 on the death penalty provided for by the sanction of Article 105 of the Criminal Code.
 See the Constitutional Court’s ruling of 24 January 2014 on the Law Amending Article 125 of the Constitution.
 See the Constitutional Court’s ruling of 4 March 1999 on the employment of USSR KGB regular employees.
 See, in particular, the Constitutional Court’s conclusion of 31 March 2004 on the impeachment of the President of the Republic.
 The Constitutional Court’s conclusion of 3 June 2014 on the actions of Seimas member Neringa Venckienė, the conclusion 27 October 2010 on the actions of Linas Karalius and Aleksandr Sacharuk, Members of the Seimas, the conclusion of 31 March 2004 on the impeachment of the President of the Republic.
 This number did not encompass three most recent rulings of the Constitutional Court, as the time-limits prescribed in the Statute of the Seimas for the implementation of the rulings of the Constitutional Court had not been reached yet. For the general overview of the implementation of the Constitutional Court’s rulings, see Annual Report by the Constitutional Court of the Republic of Lithuania, 2015, p. 104-110, 151-153, available online at <http://www.lrkt.lt/data/public/uploads/2016/06/annual-report-2015_.pdf>.