Šiurkštus Lietuvos Respublikos Seimo rinkimų įstatymo pažeidimas – pagrindas nutrūkti Seimo nario įgaliojimams

Abstract

Under Article 63 of the Constitution, a gross violation of the Law on Elections to the Seimas is one of the grounds for discontinuation of the powers of the Member of the Seimas. The Constitution does not reveal expressis verbis as to what is a gross violation of the law on election. The establishment of this is within the discretion of the legislator. While defining what a gross violation of the Law on Elections to the Seimas is, the legislator is bound by the norms and principles of the Constitution. Although the Constitution does not define expressis verbis as to what a gross violation of the law on election is, the fact that, under Item 6 of Article 63 of the Constitution, the powers of a Member of the Seimas shall cease on this ground, implies at least several things: first, not every violation of the law on election can be regarded as a gross one, thus, if the law on election has not been grossly violated, it is not permitted on this ground to recognise that the Member of the Seimas lost his mandate, or that the powers of the Member of the Seimas ceased; second, only such violations may be regarded as gross ones, upon commission of which there appear reasonable doubts whether during the election the genuine will of the voters was expressed, whether their will was not distorted to the extent that the results of the election do not reflect the genuine will of the voters and the mandates of Members of the Seimas have been distributed unfairly. The Constitution establishes the legal regulation whereby in itself the election of a person as a Member of the Seimas (acquisition of the mandate of a Member of the Seimas) does not mean that the elected Member of the Seimas acquires all rights of the representative of the Nation. Paragraph 2 of Article 59 of the Constitution provides that the elected Member of the Seimas shall acquire all the rights of a representative of the Nation only after taking at the Seimas an oath to be faithful to the Republic of Lithuania. Thus, the Constitution relates the acquisition of all rights of the representative of the Nation with the oath of the Member of the Seimas, which must be taken by the elected Member of the Seimas at a sitting of the Seimas. The Constitutional Court has held that this constitutional provision means that “a member of the Seimas does not enjoy all the rights of a representative of the Nation until he takes an oath-such an elected member of the Seimas is not a representative of the Nation yet,he does not have powers of a member of the Seimas and may not exercise them yet.” Thus, the Constitution establishes the legal regulation that until the elected Member of the Seimas takes an oath to the Republic of Lithuania, he may not yet in all extent implement the mandate of the Member of the Seimas acquired by means of elections. An analysis of the legal regulation established in Article 63 and Paragraph 2 of Article 59 of the Constitution permits to assert that these articles consolidate two different institutes of law, that each of these institutes has the content characteristic of it only and that they reflect different legal situations. Article 63 of the Constitution consolidates the institute of discontinuation of the powers of a Member of the Seimas, i.e. the institute of discontinuation of the powers enjoyed by the Member of the Seimas acquired after he has taken the oath of the Member of the Seimas. The discontinuation of the powers of a Member of the Seimas also means that the person alongside loses the mandate of the Member of the Seimas. The content of Paragraph 2 of Article 59 of the Constitution is different—the provisions that are entrenched therein are related not with discontinuation of the powers enjoyed by a Member of the Seimas (until the elected Member of the Seimas takes the oath, he has not acquired yet all the rights and duties of the member of the Seimas and all the guarantees of parliamentary activity of the Member of the Seimas), but with the loss of the mandate of the Member of the Seimas because the elected Member of the Seimas either refuses to take the oath or takes a conditional oath. The article presents an analysis on how a gross violation of the Law on Elections to the Seimas is defined in the same law. The functions of the Constitutional Court and of the Seimas related with a statement of the existence of a gross violation of the Law on Elections to the Seimas, are revealed. The article shows that the Constitution establishes different functions of the Seimas and the Constitutional Court which are related with the statement of the existence of a gross violation of the law on elections, and that it also establishes the powers necessary to discharge these functions: the Constitutional Court decides whether the Law on Elections to the Seimas has not been grossly violated during elections of Members of the Seimas, while provided the Constitutional Court draws a conclusion that the Law on Elections to the Seimas the Seimas was grossly violated, the Seimas adopts a decision on the loss of the mandate of the elected Member of the Seimas or on discontinuation of the powers of the Member of the Seimas. While summing up the legal regulation which is established in laws valid at present and which is related with a gross violation of the Law on Election to the Seimas, the article asserts that there exists a certain area of relations, which has not been legally regulated yet. In the opinion of the author, there is a lack of legal regulation which would consolidate the loss of the mandate of a Member of the Seimas who has been elected, but who has not yet taken the oath, due to the reason that after this person was elected as a Member of the Seimas, it comes to light that this person was not eligible for registration as a candidate to Members of the Seimas and his election as a Member of the Seimas was impermissible, since the said person did not meet a certain requirement specified in the Constitution. There is also a lackof legal regulation whereby the elected Member of the Seimas would lose the mandate of a Member of the Seimas due to the reason that in the period from his election till giving the oath of the Member of the Seimas there appeared (not came to light, but appeared) the circumstanced specified in the Constitution due to which such person could not be elected as a Member of the Seimas (e.g. this person acquired the citizenship of another country; this person was imposed punishment by a court judgement, but he has not fulfilled it; the person was recognised incapable, etc.). There is also a lack of legal regulation whereby it would be possible to discontinue the powers of a Member of the Seimas if it is established, after such person has taken the oath of the Member of the Seimas, that there are such circumstances due to which this person in general could not be elected as a Member of the Seimas, since he did meet a certain requirement established in the Constitution. Each of these situations can be different, perhaps other similar situations are possible. Corresponding legal regulation should be provided for each of such situations. In the opinion of the author, it is important that additional powers be granted to the Central Electoral Commission, the Constitutional Court and the Seimas so that it would be possible to ensure that only such elected Members of the Seimas will take the oath of the Member of the Seimas and acquire all powers of a representative of the Nation who, before they were elected, met the requirement specified in the Constitution. The additional powers to the Seimas and the Constitutional Court are also necessary in order that after it comes to light that a person has taken the oath of the Member of the Seimas who, under the Constitution, was not eligible for election as a Member of the Seimas, it would be possible to discontinue the powers of such Member of the Seimas at any time. The lack of the said legal regulation is big to the extent that its absence is assessed in this article as a vacuum of the legal regulation, while such vacuum is prohibited by the Constitution. The article presents proposals on how it would be possible to improve the legal regulation established in the Law on Elections to the Seimas and the Law on the Constitutional Court.