Postponement of the Removal of Non-Constitutional Legal Acts from the Legal System in the Practice of Constitutional Courts of Lithuania and Foreign Countries
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Abstract
Removal by the Constitutional Court ruling of a non-constitutional law or other legal act from the legal system may result in appearance of gaps in legal regulation, as well as in other undesirable consequences. Avoiding the problems related with changes in the legal system that occur after elimination of nonconstitutional provisions, various measures are being applied in practise of constitutional courts of foreign countries. The postponement of the term when non-constitutional legal acts lose their force is prevailing.
In this article one surveys substantial peculiarities of the practise of constitutional courts of foreign countries as well as of the Constitutional Court of the Republic of Lithuania applying the institution of postponement. One also discusses basic arguments by means of which the constitutional courts of various countries justify their decisions to postpone the elimination of non-constitutional provisions from the legal system. Some theoretical and practical aspects of the legal consequences of such decisions are being discussed as well.
The constitutions and/or the laws of a number of countries provide constitutional courts, after they recognise a law of other legal act as being in conflict with the Constitution, with the discretion to postpone the term when this legal act loses its force. After the decision of a constitutional court, prolonging to a particular term the application of non-constitutional provisions in order to avoid gaps in legal regulation until respective amendments are adopted, comes into force, the legislator is under a legal obligation to implement this decision and to amend the non-constitutional legal regulation until the defined term. The substantial axiological argument that justifies a temporary keeping of non-constitutional provisions in the legal system is an attempt to avoid consequences that can violate constitutional values even more than the ones that could be caused by a temporary application of non-constitutional provisions.
The Constitution of the Republic of Lithuania does not directly provide for any legal instruments that could allow avoiding a legal vacuum or other undesirable consequences that could originate from a sudden elimination of non-constitutional provisions from the legal system. Therefore it was the Constitutional Court that had to find a solution to this problem. Considering that, according to Paragraph 1 of Article 107 of the Constitution, a law or any other legal act may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question is inconsistent with the Constitution, the Constitutional Court of the Republic of Lithuania decided to postpone the official publishing and coming into force of its ruling instead of postponing the term when deficient legal norms lose their force which is practised by the constitutional courts of a number of countries. The reason for that was to provide for a period necessary for the legislator to eliminate the gaps in law that could emerge if the ruling of the Constitutional Court had been officially published immediately after its public announcement in the hearing of the Constitutional Court.
It is stressed in this article that the given variant of postponement is in some aspects a more acceptable legal measure than prolongation of validity of the legal norms recognised as non-constitutional that may cause not only theoretical incertitude but also certain practical dilemmas. Alongside, attention is drawn to the fact that the ruling of the Constitutional Court that has not yet come into force in a formal legal sense does not oblige the legislator to undertake respective legislative actions. Therefore the effectiveness of the variant of postponement chosen by the Constitutional Court of the Republic of Lithuania will basically depend only upon the responsible attitude of the Seimas towards its constitutional obligations and its good will.
In this article one surveys substantial peculiarities of the practise of constitutional courts of foreign countries as well as of the Constitutional Court of the Republic of Lithuania applying the institution of postponement. One also discusses basic arguments by means of which the constitutional courts of various countries justify their decisions to postpone the elimination of non-constitutional provisions from the legal system. Some theoretical and practical aspects of the legal consequences of such decisions are being discussed as well.
The constitutions and/or the laws of a number of countries provide constitutional courts, after they recognise a law of other legal act as being in conflict with the Constitution, with the discretion to postpone the term when this legal act loses its force. After the decision of a constitutional court, prolonging to a particular term the application of non-constitutional provisions in order to avoid gaps in legal regulation until respective amendments are adopted, comes into force, the legislator is under a legal obligation to implement this decision and to amend the non-constitutional legal regulation until the defined term. The substantial axiological argument that justifies a temporary keeping of non-constitutional provisions in the legal system is an attempt to avoid consequences that can violate constitutional values even more than the ones that could be caused by a temporary application of non-constitutional provisions.
The Constitution of the Republic of Lithuania does not directly provide for any legal instruments that could allow avoiding a legal vacuum or other undesirable consequences that could originate from a sudden elimination of non-constitutional provisions from the legal system. Therefore it was the Constitutional Court that had to find a solution to this problem. Considering that, according to Paragraph 1 of Article 107 of the Constitution, a law or any other legal act may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question is inconsistent with the Constitution, the Constitutional Court of the Republic of Lithuania decided to postpone the official publishing and coming into force of its ruling instead of postponing the term when deficient legal norms lose their force which is practised by the constitutional courts of a number of countries. The reason for that was to provide for a period necessary for the legislator to eliminate the gaps in law that could emerge if the ruling of the Constitutional Court had been officially published immediately after its public announcement in the hearing of the Constitutional Court.
It is stressed in this article that the given variant of postponement is in some aspects a more acceptable legal measure than prolongation of validity of the legal norms recognised as non-constitutional that may cause not only theoretical incertitude but also certain practical dilemmas. Alongside, attention is drawn to the fact that the ruling of the Constitutional Court that has not yet come into force in a formal legal sense does not oblige the legislator to undertake respective legislative actions. Therefore the effectiveness of the variant of postponement chosen by the Constitutional Court of the Republic of Lithuania will basically depend only upon the responsible attitude of the Seimas towards its constitutional obligations and its good will.
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Please see Copyright and Licence Agreement for further details.
