KONSTITUCIJOS VIRŠENYBĖS UŽTIKRINIMAS: KAI KURIE KONSTITUCINIO TEISMO IMPLICITINIŲ ĮGALIOJIMŲ ASPEKTAI

Abstract

This article deals with the most noticeable aspects of the implied powers of the Constitutional Court of the Republic of Lithuania in ensuring the supremacy of the Constitution.
Without doubt, the constitutional mission of the Constitutional Court of the Republic of Lithuania is to ensure the supremacy of the Constitution and, by the same token, the rule of law. According to an analysis of the relevant jurisprudence of the Constitutional Court of the Republic of Lithuania, the effective implementation of the Constitutional Court’s mission of ensuring the supremacy of the Constitution and the rule of law is only possible if no compromises are made at the expense of the Constitution and the rule of law. For this purpose, in interpreting the Constitution, the Constitutional Court reveals its own implied powers (aspects thereof). Thus, in order to effectively handle the challenges faced by the Constitution and the rule of law, the Constitutional Court, in accordance with the Constitution, possesses all the necessary powers, including those that are not explicitly laid down in the text of the Constitution, but can be justified by the mission of the Constitutional Court to ensure the supremacy of the Constitution and the rule of law, while simultaneously interpreting the Constitution in
the context of its other provisions and principles (the limits of these powers are determined by the explicit provisions of the Constitution. For example, those that pertain to setting out the entities that have the right to apply to the Constitutional Court and the law-making entities whose acts may be challenged before to the Constitutional Court).
The development of the implied powers of the Constitutional Court can be described by three principles that follow from the necessity to ensure the supremacy of the Constitution and the rule of law. First, no legal act may have immunity from constitutional review. Therefore, although not explicitly mentioned in the text of the Constitution, the objects of constitutional review exercised by the Constitutional Court are, for example, amendments to the Constitution, legal acts adopted by a referendum, individual legal acts passed by the Seimas, the President of the Republic, or the Government, as well as legal acts of a non-normative (programme or conceptual) nature that are passed by the Seimas or the Government. If the Constitutional Court were precluded form verifying the legal acts not explicitly mentioned as objects of constitutional review carried out by it, it would be impossible to effectively ensure the supremacy of the Constitution and the rule of law, as this would create preconditions for “circumventing” the Constitution by adopting such legal acts whose constitutionality could not be verified by anyone (since, according to the Constitution, no other court, but only the Constitutional Court, may verify the constitutionality of legal acts passed by the Seimas, the President of the Republic, or the Government, as well as those adopted by a referendum of the Nation). In other words, preconditions would be created for denying the hierarchy of values entrenched in, and protected by, the Constitution, for amending the Constitution in violation of the procedure established therein, including the carrying out of individual anticonstitutional actions or adopting programme acts of any content, and laying down guidelines for the actions of state institutions that would not necessarily conform with the Constitution.
The second principle is the prohibition to overrule a final act of the Constitutional Court. This principle arises from the binding nature of a final act of the Constitutional Court, as well as from the finality and non-appealability of a final act of the Constitutional Court, as established in Paragraph 2 of Article 107 of the Constitution. In this regard, any act overruling the legal power of a final act of the Constitutional Court should be considered null and void. Therefore, Paragraph 2 of Article 107 of the Constitution, the principles of the supremacy of the Constitution and the rule of law, as well as the constitutional mission of the Constitutional Court, give rise to the power
of the Constitutional Court to declare as anticonstitutional, all the legal consequences of a legal act adopted in breach of the prohibition on overruling the legal power of a final act of the Constitutional Court, including those that occurred before declaring this act anticonstitutional. Otherwise, preconditions would be created for a situation, which is obviously not tolerated by the Constitution, where, in pursuit of short term political goals, a knowingly anticonstitutional legal act could be deliberately adopted, which would overrule the legal power of a final act of the Constitutional Court and, for a limited period (until the legal regulation established by the said act is declared as anticonstitutional once again by the Constitutional Court), would thereby create anticonstitutional, though formally legal, consequences.
The third principle is harmonisation of the provisions of the Constitution with international and EU law. This aspect of the constitutional power of the Constitutional Court to officially interpret the Constitution arises out of the Constitutional Court’s constitutional mission of ensuring the supremacy of the Constitution and the rule of law, where the said mission is understood in the context of the constitutional principles of a state under the rule of law, respect for international law, an open civil society, and a Western geopolitical orientation. While ensuring the supremacy of the Constitution, the Constitutional Court must find ways to bring it into accordance with another aspect
of the rule of law – respect for international (and EU) law, and in fulfilling such an obligation, the Constitutional Court may apply all necessary measures – from harmonising interpretation, to pointing out the obligation to amend the Constitution or eliminating amendments to the Constitution that contradict international or EU law.
It is worth noting that the development of implied powers of the Constitutional Court in ensuring the supremacy of the Constitution is not only related with a posteriori review of the constitutionality of legal acts. It also has some features for the preventive control of constitutionality. For example, by carrying out a review of nonnormative (programme or conceptual) acts passed by the Seimas or the Government, the Constitutional Court may simultaneously prevent further legislation of anticonstitutional content or other anticonstitutional acts that would be based on the said non-normative legal acts, thus providing the possibility, revealed by the Constitutional Court, to declare as null and void the consequences of a legal act that overrules the legal power of a final act of the Constitutional Court, which discourages the deliberate adoption of knowingly anticonstitutional legislation. Therefore, the official constitutional doctrine of the constitutionality of amendments to the Constitution, as formulated by the Constitutional Court, creates preconditions for avoiding their incompatibility with the Constitution and international (and EU) law.
To sum it up, one can note that the development of the implied powers of the Constitutional Court in ensuring the supremacy of the Constitution is exceptional in the context of practice of other constitutional courts. Indeed, not all constitutional courts dare defend without compromises the supremacy of the Constitution and the rule of law, and it should be recognized that not in all countries undertake to review the constitutionality of all legal acts constitutional courts (in particular, amendments to the Constitution, individual acts, or those of a programme nature), or recognise the possibility to declare a legal act as null and void that is manifestly anticonstitutional in cases where such a possibility is not explicitly provided for in the Constitution, or to form such a particularly friendly attitude in regard to international and EU law. The development of the implied powers results from a proper and responsible implementation of the mission of the Constitutional Court in effectively addressing the emerging challenges and preventing potential threats to the Constitution and the rule of law.