Ar Seimo nario veikla, kartu einant pareigas Vyriausybėje, nepažeidžia Lietuvos Respublikos Konstitucijoje įtvirtinto valdžių padalijimo principo? ; Wether the activity of member of Seimas, while in a given position in Governmet, without prejudice to the Constitution of the Republic of Lithuania est...
Every human being living in the State of Nature had equal opportunities. Because of the growth of human race, this state altered and the interests of each individual person began to intersect, especially when talking about property. As a result, the rights and freedoms of each individual person were taken under threat. Therefore people began to organize themselves into societies in order to solve collective issues of society all together. When they had elected the most competent representatives, able to represent the interests of all Nation the best they could, people living in the State of Nature voluntarily waived their rights for handling particular issues in collective manner. The first aim of the representatives was the welfare of people. Thus the fundamental institute of the highest government was born. However, decisions taken in the name of all the people would have no power if they could not be enforced and would not reflect interests of the Nation. Seeking to implement supervision, the executive power was established which took care of the general welfare and the realization of all decisions. Thus, having a different purpose in society, legislature and executive authorities acted solely for their own sphere. Therefore, legislature and executive authorities could represent and work for the people as fair as possible. This is the basic idea of the historical division of powers which, variously modified or pure, as the security of democracy, was adopted by the majority of the most developed states in Western Europe and other states. Thus, the aim of every up-to-date democratic and, in particular, postcommunistic regime state is to establish a framework of powers which would perfectly guarantee the rights and freedoms of ordinary member of society and would not revive undemocratic governance trends, when power is concentrated in the hands of the central government. According to the division of powers doctrine stated in the founding works, the governance of state must be established as three divided powers - legislative, executive and judicial powers. As it was mentioned before, each branch of government has only the powers assigned to it and they can neither delegate nor take over functions from the other branches of government. In no way the one branch of government can be interblended with other. However, separation of powers does not mean that legislative, executive and judicial powers are autonomous - this means that they cooperate in a manner seeking to reach the level of balance that no power has an advantage over the other. This principle has to be continuously carried out in respect of parliamentary control of government. Only this way will properly safeguard the Nation's rights and freedoms. Based on the experience of legal history in Lithuania and other foreign countries there was implemented the principle of division of powers. However, the framework of constitutional division of powers in the Republic of Lithuania has a modified nature. This conclusion can be made on the basis of the Lithuanian Constitutional Court ruling where unreasoned finding was made that the member of Seimas at the same time in accordance with the exception to the principle of division of powers provided in the Constitution of the Republic of Lithuania may be appointed to do duties as a member of the executive branch of government (the Government). In this way, the situation arises where such member of Seimas, taking the parliamentary control and having responsibility to monitor the activities of the executive branch, controls himself. This could result in the abuse of power and dissipation of resources. In this instance, a person being the member of Seimas and also a member of executive branch, shall receive the Constitution set salary for both possitions. Typically, such member of Seimas does not participate in the plenary sittings of Seimas because of the workload in the Government. This problem to be solved is in a competence of Constitutional Court but its power under the doctrine of the division of powers is limited because it would have the opportunity to speak only if called upon by a group of persons referred to in the Constitution. In addition, Constitutional Court has the competence to state only in the limits of the Constitution. As a result, the exceptions stated by Constitutional Court as being established in the Constitution, the principle of division of powers will be implemented in a manner mentioned above. Another possibility to solve this problem is in the prerogative of people or the representatives of people. The Constitution enshrines the opportunity for the members of Seimas to discuss people's concerns and the adoption of the laws limiting the interblending of powers, (whereas the Constitution provides for only the possibility of merger), or to initiate constitutional amendments immediately. If this possibility is not used by the members of Seimas, people can use it by themselves under manner established in the Constitution. The hypothesis (an appointment of the member of Seimas at the same time to do duties as a member of the executive branch contradicts the principle of division of powers estableshed in the Constitution) put forward in this study is denied based on the following considerations: 1. By the consensus of society in the State of Nature it has been decided to delegate own personal rights to the representatives of people. In this way legislature was founded, which meets interests of the people. Enforcement of judgments and accounting of resources have been transmitted for the executive. There was such a framework of governments and balance designed which could ensure the restriction of legislative powers to adopt decisions in excessive waste of the society goods and rapid and qualitative implementation of the rules of executive. Consequently, the merger of governments is not possible. 2. In Lithuania's history of constitutional law, the principle of division of powers in line with the historical principle of the division of powers was implemented in the Constutions of 1922 and 1990. These constitutions have been secured through the implementation of democracy. Constitutions of 1928 and 1938, were drawn in the interest of autocratic regimes. 3. The Constitutional Court decides the constitutionality of acts only according to the limits provided in the Constitution. Since the Constitution of the Republic of Lithuania is a single act, the constitutionality of legislation is addressed not only expletively, but also implicitly. Therefore, the Constitutional Court found an exception from the principle of division of powers, which allows the member of Seimas, being appointed to do duties as a member of the executive branch of goverment, to work two jobs at once. As a consequence, the activity of the member of Seimas in a given position in the Government do not contradict the principle of division of powers stated in the Constitution of the Republic of Lithuania. It is important to notice that the Constitutional Court shall have the right to decide the constitutionality of legislation only upon the request, but not on its own initiative. The exemption established by the Constitutional Court was declared without initial request. However, under the Constitution, this decision is necessarily enforceable. It is important to mention that the nation or its representatives also has the power to initiate amendments to the Constitution. Therefore it can be assumed that such exception could be the primary expression of the will of nation. 4. On the grounds of the competence of legislative branch, the Seimas has a duty to combine the exeption established and the principle of division of powers. Therefore some issues must be solved concerning compulsory participation of the member of Seimas in plenary sittings, workload, quality of the duties performed, salary for the duties performed and parlamentary control. Under these circumstances, the member of Seimas at the same time in the position of a member of the executive branch has the right not to participate in plenary sittings, exceed the competence, get salary for the both positions despite the fact that some duties as being the member of Seimas is not carried out and act without adequate control. This clearly contradicts the priciple of division of powers. In summary this condition is legitimized by the Constitutional Court and the issue raised is whether the principle of division of powers as established in the Constitution of the Republic of Lithuania does not contradict to the historical concept of the principle of separation of powers? The answer can be provided only by the nation or its representatives – the Seimas of the Republic of Lithuania.