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Content updated: 10-05-2021 09:40

The legal regulation governing the elections and powers of municipal mayors is in conflict with the Constitution

19-04-2021

By its ruling passed today, the Constitutional Court has recognised that the most important provisions of the Law on Local Self-Government and of the Law on Elections to Municipal Councils relating to the elections and powers of municipal mayors are in conflict with Article 119 of the Constitution, which enshrines the constitutional foundations of local self-government.

Article 119 of the Constitution prescribes:

“The right to self-government shall be guaranteed to the administrative territorial units of the State, which are provided for by law. This right shall be implemented through the respective municipal councils.

The members of municipal councils shall be elected for a four-year term, as provided for by law, from among the citizens of the Republic of Lithuania and other permanent residents of the respective administrative units by the citizens of the Republic of Lithuania and other permanent residents of these administrative units on the basis of universal, equal, and direct suffrage by secret ballot.

The procedure for the organisation and activities of self-government institutions shall be established by law.

For the direct implementation of the laws of the Republic of Lithuania, as well as the decisions of the Government and the municipal council, the municipal council shall form executive bodies accountable to it.”

The provisions of Item 1 of Paragraph 3 of Article 3 of the Law on Local Self-Government “… which is headed by the member of the municipal council – the mayor (hereinafter referred to as the ‘mayor’), who is directly elected in a single-member constituency in accordance with the procedure laid down by the Republic of Lithuania’s Law on Elections to Municipal Councils. The mayor shall be the head of the municipality who exercises the powers provided for by this Law and other laws” have been recognised to be in conflict with Paragraphs 1, 2, and 4 of Article 119 of the Constitution.

The provisions of Paragraph 2 of Article 5 of the Law on Local Self-Government “Local government functions shall, in the manner prescribed by law, be exercised by the municipal council and the mayor when exercising the powers provided for by law. Public administration functions shall, in the manner prescribed by law, be exercised by the municipal council, the mayor, an executive institution (executive institutions) of the municipality, other heads of municipal establishments and services, state servants who are granted the rights of public administration within the territory of the municipality by legal acts or decisions of the municipal council”, insofar as, under those provisions, local government and public administration functions are performed by the mayor, as well as Paragraph 2 of Article 20 of that law, which establishes the specific powers of the mayor, have been recognised to be in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

The following provisions of the Law on Local Self-Government were recognised to be in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution:

– the provision of Paragraph 9 of Article 13 “In the event of a tie (votes shall be deemed to be evenly distributed when the number of votes cast in favour is equal to the combined number of votes cast against and abstentions), the mayor shall have a casting vote”;

– the provisions of Paragraph 1 of Article 19 “The mayor shall be directly elected for the term of the powers of a municipal council” and “Only the citizens of the Republic of Lithuania may become mayors and deputy mayors”;

– the provision of Paragraph 5 of Article 19 “if they lose citizenship of the Republic of Lithuania”, which lays down such grounds for the loss of the powers of deputy mayors.

Paragraph 7 of Article 19 of the Law on Local Self-Government, which lays down the basis for the loss of the mayor’s powers – the loss of citizenship of the Republic of Lithuania – was recognised to be in conflict with Paragraph 2 of Article 119 of the Constitution.

The Constitutional Court also recognised that:

– the provision of Paragraph 3 of Article 1 of the Law on Elections to Municipal Councils “(except the member of the municipal council – the mayor)” and Paragraph 4 of the same article, i.e. the provisions according to which the mayor is directly elected in a single-mandate constituency comprising the entire municipality, are in conflict with Paragraphs 1 and 2 of Article 119 of the Constitution;

– the provision of Paragraph 2 of Article 2 of the Law on Elections to Municipal Councils “a citizen of the Republic of Lithuania who may be elected member of a particular municipal council may be elected the member of that council who is the mayor of that municipality”, i.e. the requirement of citizenship of the Republic of Lithuania for persons who may be elected as mayors, is in conflict with Paragraph 2 of Article 119 of the Constitution.

This ruling of the Constitutional Court must be officially published in the Register of Legal Acts on 3 May 2023 and will enter into force on that date. This means that the mayors elected in the 2019 election (or in subsequent elections) will be able to fulfil their duties until the end of their term of office. However, in 2023, direct elections of municipal mayors will only be possible if the relevant amendments to Article 119 of the Constitution are made by then.

It should be stressed that, in this case, the Constitutional Court did not decide on the issue of the expediency of direct elections of mayors, i.e. when the mayor is directly elected by the municipal community. The Constitutional Court deals only with legal issues: in this case, it assessed whether the manner and status of the elections of mayors laid down in laws were in line with the effective Article 119 of the Constitution. It should be noted that, from a legal point of view, direct elections of mayors, when they are elected by relevant municipal communities, are possible only after the amendment of the Constitution.  

The provisions of the Constitution and the official constitutional doctrine

The Constitutional Court noted that Article 119 of the Constitution enshrines the right of self-government; the said right is guaranteed to the administrative territorial units of the state, which are provided for by law, and is implemented by the territorial communities of those administrative units through the municipal councils elected by them.

The Constitution names the communities of the administrative territorial units of the state – territorial communities – as municipalities; the term “municipality” is also used in the sense of local self-government institutions and/or the institutions that are accountable to them. The Constitution provides for two types of municipal institutions: municipal councils (representative institutions) and executive bodies (executive institutions) accountable to them; municipal councils, when implementing the right of self-government guaranteed by the Constitution, may also form other municipal institutions that would have powers of authority, as well as other municipal establishments.

Paragraph 1 of Article 119 of the Constitution enshrines the constitutional purpose of municipal councils: they are political representative institutions of the territorial communities of the administrative units – self-government institutions – through which the right, guaranteed by the Constitution, of self-government of those communities is implemented. Paragraph 2 of Article 119 of the Constitution establishes the procedure for the formation of municipal councils: they are elected by the territorial communities of the relevant administrative units from their members on the basis of the principles of democratic elections.

As underlined by the Constitutional Court, whatever electoral system of municipal councils is chosen, the legislature must respect the principles of democratic elections enshrined in the Constitution. According to Paragraph 2 of Article 119 of the Constitution, the legislature must respect, among others, the requirements of equal suffrage, including the establishment of uniform requirements, arising from and not conflicting with the Constitution, for candidates for members of municipal councils. Differently from the implementation of the active and passive electoral rights in the election of the Seimas or of the President of the Republic, the requirement of citizenship of the Republic of Lithuania to exercise such electoral rights in municipal council elections is not stipulated in Paragraph 2 of Article 119 of the Constitution, i.e. the holding of the electoral rights for the election of members of municipal councils is not associated with citizenship, but with the permanent residence of a person in the territory of the municipality concerned (the electoral rights for the election of members of municipal councils are held by citizens of the Republic of Lithuania, citizens of other states, and stateless persons who permanently reside in the territory of the municipality concerned). It was thus stressed that Paragraph 2 of Article 119 of the Constitution does not establish the requirement of citizenship of the Republic of Lithuania for the election of a member of a municipal council.

In addition to the requirements for members of municipal councils, the Constitutional Court also clarified their constitutional status as members of political representative institutions. One of the principles of representative democracy is the equality of the mandate (status) of the members of political representative institutions, which presupposes the equal rights and duties of the members of the institutions concerned. The Constitution enshrines that principle by establishing the constitutional status of a member of the Seimas as a representative of the People with a free mandate; this principle is also enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution, which consolidates the constitutional status of members of the municipal council as representatives of the relevant territorial community with a mandate from that community. Under the Constitution, each member of the Seimas represents the entire People, all the members of the Seimas are equal and they must have the same opportunities to participate in the work of the Seimas. Similarly, members of municipal councils must also be equal in their legal status.

The Constitutional Court stressed that the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community presupposes that all members of a municipal council have the same constitutional status, regardless of whether they are elected under a single (proportionate or majoritarian) electoral system or different electoral systems (if the legislature opts for the so-called mixed system of election of members of municipal councils). This means that, according to the Constitution, among others, Paragraphs 1 and 2 of Article 119 thereof, each member of the municipal council represents the entire relevant territorial community, all members of the municipal council are equal, they must have equal opportunities to participate in the work of the municipal council, including equal rights to be elected to positions in the municipal council, as well as the equal right to vote when adopting decisions of the municipal council. The principle of the equal mandate (status) of municipal council members in itself is not violated by the rule of proportional political representation in the internal structural units (subunits) of the municipal council, as well as by the fact that municipal council members appointed to certain positions in the municipal council may acquire additional rights and responsibilities under the law.

The Constitutional Court also emphasised that the Constitution, in particular Paragraphs 1 and 2 of Article 119 thereof, does not provide for any exceptions to the principle of equal status of members of municipal councils, i.e. no members of municipal councils having exclusive status are provided for. The Constitution specifically provides for the election of members of municipal councils and not of a certain exclusive member, i.e. the mayor. Consequently, under the Constitution, the law cannot provide for the position of the head of a municipal council directly elected by the relevant local community. Similarly, in line with the principles of representative democracy, the law must not establish the position of the Speaker of the Seimas directly elected by citizens.  

The Constitutional Court has also revealed the features of municipal executive institutions established in Paragraph 4 of Article 119 of the Constitution: they are formed by means of a decision taken by the municipal council, are accountable to the municipal council that formed them, and they perform executive functions, i.e. directly implement laws, the decisions of the Government, and those of the municipal council. The Constitutional Court noted from the aspect relevant to this case that the executive institutions specified in Paragraph 4 of Article 119 of the Constitution are not municipal councils’ internal structural units (subunits) responsible for ensuring the work of the municipal council itself; the executive institutions accountable to municipal councils must not be formed from among the members of the municipal councils that establish those institutions. It was emphasised that, according to the Constitution, members of municipal councils must not be granted the powers of executive institutions.

Summing up, the Constitutional Court stressed that Article 119 of the Constitution, Paragraphs 1 and 4 of which establish the types of municipal institutions, does not provide for the institution of the head of a municipality as the community of a territorial administrative unit of the state. Paragraphs 1 and 2 of Article 119 of the Constitution do not establish the position of a municipal council’s chairperson directly elected by the relevant territorial community, and Paragraph 4 of that article does not provide for municipal executive institutions (including such executive institutions that are directly elected by the relevant territorial communities) other than those formed by the municipal council. In other words, the Constitution does not provide for the institution of the mayor directly elected by the relevant territorial community; however, that institution of the mayor is established in the Law on Local Self-Government, which is impugned by the petitioner.

Consequently, in the absence of a corresponding amendment to Article 119 of the Constitution in accordance with the procedure established by the Constitution, it is not allowed to establish by law a single-person municipal public administration institution (named, among others, the “mayor”) directly elected by the relevant territorial community, where that institution, among others, would be responsible for the direct implementation of laws, the decisions of the Government, and those of the municipal council. If a review of Article 119 of the Constitution is undertaken, the principles of local self-government enshrined in the Constitution, including the principles of representative democracy, the accountability of executive institutions to the representative institution (municipal council), the supremacy of the municipal council over other municipal institutions, etc., should be respected.

The Constitutional Court has also noted that the fundamental principle of democracy, which is enshrined in the Constitution and may not be denied by any amendment to the Constitution, presupposes democratic change of one-person institutions and the restriction of one-person power. Therefore, the introduction in the Constitution of a single-person municipal public administration (executive) institution (named, among others, the “mayor”) directly elected by the respective territorial community should also determine how many terms of office in such an elective position may be held by the same person. In addition, taking into account the interests of the state and society, the Constitution may establish the requirement of citizenship of the Republic of Lithuania for persons seeking to be elected to office in such a single-person municipal institution.

The assessment of the constitutionality of the provisions of the Law on Local Self-Government and the Law on Elections to Municipal Councils

In this ruling, the Constitutional Court has assessed not only the impugned provisions of the Law on Local Self-Government related to elections of municipal mayors and their powers, but also the other related provisions of that law and of the Law on Elections of Municipal Councils. The Constitutional Court has held on more than one occasion that the implementation of constitutional justice implies that a legal act (or part thereof) that is in conflict with the Constitution must be removed from the legal system. Therefore, according to the Constitution, the Constitutional Court must remove from the legal system all anticonstitutional provisions whose unconstitutionality becomes apparent in a relevant constitutional justice case under consideration.

Thus, if the Constitutional Court finds the unconstitutionality of provisions that are not impugned by a petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their constitutionality, and also if it finds the unconstitutionality of the provisions of a law whose compliance with the Constitution is not impugned by a petitioner, but which regulate part of the relationships covered by an impugned law, it must state that the said provisions that are not impugned by the petitioner have been found to be unconstitutional. Failure to perform this duty would not comply with the constitutional purpose of the Constitutional Court to administer constitutional justice and to guarantee both the supremacy of the Constitution in the legal system and constitutional lawfulness.

Assessing the provisions, impugned by the petitioner, of Item 1 of Paragraph 3 of Article 3, Paragraph 2 of Article 5, Paragraph 1 of Article 19, and Paragraph 2 of Article 20 of the Law on Local Self-Government, the Constitutional Court noted that, according to the legal regulation established in that law, the mayor is a member of the municipal council – the municipal representative institution – who has exclusive status. First, the mayor is the head of the municipal council, who is elected directly by the municipal community, i.e. his/her election to that position does not depend on the will of the members of the municipal council. Second, the mayor is also the head of the municipality, i.e. the head of the municipality as an administrative territorial unit of the state established by law, among others, the head, who is granted the relevant local authority powers, of that administrative unit’s community that is implementing the right of self-governing guaranteed by the Constitution. Third, the mayor is also a public administration entity, who has been granted the appropriate authority to perform, among other things, executive activities when directly implementing laws, resolutions of the Government, and decisions of the municipal council. Thus, due to the exclusive method of his/her election and the specific independent powers granted to him/her by law, the mayor, although being a member of the municipal council, is a municipal institution not provided for in the Constitution – the mayor is neither a representative institution (municipal council) nor an executive or other institution formed by means of a decision taken by the municipal council.

In view of this, the Constitutional Court held that, by establishing such a status of the mayor in the provisions of Item 1 of Paragraph 3 of Article 3 of the Law on Local Self-Government, a municipal institution not provided for in Paragraphs 1 and 4 of Article 119 of the Constitution was established, and that the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community was violated by establishing the exclusive method of electing the mayor as a member of the municipal council and as its head; the said principle presupposes the equal constitutional status of all members of the municipal council, among others, their equal rights to participate in the work of the municipal council, including the right to be elected to a position in the municipal council.

The Constitutional Court assessed similarly the provisions of Paragraph 2 of Article 5 of the Law on Local Self-Government, in which the mayor is established as a separate municipal institution with local government and public administration powers laid down in laws: these provisions also consolidate a municipal institution not provided for in Paragraphs 1 and 4 of Article 119 of the Constitution, and disregard the requirement, arising from Paragraph 4 of Article 119 of the Constitution, not to grant the powers of executive institutions to members of municipal councils.  On the basis of the same arguments, the Constitutional Court recognised that Paragraph 2 of Article 20 of the Law on Local Self-Government, which gives concrete expression to the mayor’s powers (this paragraph sets out the specific local authority powers exercised by the mayor as the head of the municipal council and by the mayor as the head of the municipality, as well as the powers of the mayor as a public administration entity to carry out, among others, executive activities), is in conflict with Paragraphs 1 and 4 of Article 119 of the Constitution.

The Constitutional Court has also stated that the provision of Paragraph 1 of Article 19 of the Law on Local Self-Government which enshrines an exclusive method of electing the head of a municipal council to this position in the municipal council (who is elected not by members of the municipal council but by the municipal community) violates the principle (enshrined in Paragraphs 1 and 2 of Article 119 of the Constitution) of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community; the said principle presupposes the equal constitutional status of all members of the municipal council, among others, their equal rights to participate in the work of the municipal council, including the right to be elected to a position in the municipal council.

Some other provisions, not impugned by the petitioner, of the Law on Local Self-Government and of the Law on Elections to Municipal Councils were also assessed as violating the principle, entrenched in Paragraphs 1 and 2 of Article 119 of the Constitution, of an equal mandate (status) of members of municipal councils as representatives of the relevant territorial community; those provisions were: first, the provision of Paragraph 9 of Article 13 of the Law on Local Self-Government, which enshrined the exclusive, i.e. unequal, right of a decision-making vote of the member of a municipal council – the mayor – in making decisions of the municipal council; second, the provisions of Paragraphs 3 and 4 of Article 1 of the Law on Elections to Municipal Councils, which, as well as Item 3 of Paragraph 3 of Article 3 and Paragraph 1 of Article 19 of the Law on Local Self-Government, consolidate the exclusive method of electing the mayor as one of the members of the municipal council and as its head (the mayor is directly elected in a single-member constituency comprising the entire municipality, i.e. he/she is elected as the head of the municipal council not by the members of the municipal council, but by the municipal community).

The Constitutional Court also assessed the special requirement, established in the Law on Local Self-Government and the Law on Elections to Municipal Councils, for the mayor to be a citizen of the Republic of Lithuania. It was held that the provisions of Paragraphs 1 and 7 of Article 19 of the Law on Local Self-Government and of Paragraph 2 of Article 2 of the Law on Elections to Municipal Councils disregarded the equal suffrage requirement, enshrined in Paragraph 2 of Article 119 of the Constitution, to establish uniform requirements, which arise from the Constitution and are not in conflict with it, for candidates for municipal councils, since the requirement of citizenship of the Republic of Lithuania for persons who may be elected as members of municipal councils is not established in Paragraph 2 of Article 119 of the Constitution. In addition, the provisions of Paragraphs 1 and 5 of Article 19 of the Law on Local Self-Government, which enshrine the requirement of citizenship of the Republic of Lithuania for the members of the municipal council who may be appointed to the position of a deputy mayor, as this is an additional requirement for elected members of the municipal council who may be appointed to this position, were also recognised as violating the principle, enshrined in Paragraphs 1 and 2 of Article 119 the Constitution, of the equal mandate (status) of members of municipal councils as representatives of the relevant territorial community.

On the entry into force of this ruling of the Constitutional Court

By this ruling of the Constitutional Court, the most important provisions of the Law on Local Self-Government and of the Law on Elections to Municipal Councils relating to the elections and powers of municipal mayors were recognised to be in conflict with the Constitution. Those provisions are systematically related to a lot of other provisions of those laws.

Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. Thus, upon the entry into force of this ruling of the Constitutional Court, the most important provisions of the Law on Local Self-Government and of the Law on Elections to Municipal Councils relating to the elections and powers of municipal mayors, as well as numerous other provisions of those laws, will no longer be applicable.

Under the Constitution, the Constitutional Court, having assessed, among others, what legal situation might arise after a ruling of the Constitutional Court becomes effective, may establish the date of the official publication and entry into force of that ruling. The Constitutional Court enjoys the constitutional power to establish a later date of the official publishing (thus, also of entry into force) of its ruling whereby a certain legal act (or part thereof) was recognised as being in conflict with the Constitution, where, in the case the ruling of the Constitutional Court after its adoption were immediately officially published, a vacuum or other indeterminacies might appear in the legal regulation due to which certain values consolidated in and defended and protected by the Constitution could be violated in essence. The postponement of the official publication of a ruling of the Constitutional Court is a precondition stemming from the Constitution in order to avoid certain consequences unfavourable to society and the state, as well as to human rights and freedoms, that might arise if the relevant ruling of the Constitutional Court were officially published immediately after it is pronounced publicly at the hearing of the Constitutional Court and if it became effective on the day of its official publication.

According to the Constitution and the Law on the Constitutional Court, after the official publication of this ruling of the Constitutional Court, most of the provisions of the Law on Local Self-Government and of the Law on Elections to Municipal Councils will not apply from the date of the official publication of this ruling of the Constitutional Court. Therefore, if the ruling of the Constitutional Court in this case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, there would occur a regulatory gap and uncertainty in the legal regulation of local self-government due to which the functioning of the system of local self-government and the administration of the state would be fundamentally disrupted.

In view of the fact that a certain period of time is necessary to remove the said gap and uncertainty in the legal regulation of local self-government, this ruling of the Constitutional Court must be officially published in the Register of Legal Acts on 3 May 2023.

The Constitutional Court also noted that, in the absence of a corresponding amendment to Article 119 of the Constitution in accordance with the procedure established by the Constitution, it is not allowed to establish by law a single-person municipal public administration (executive) institution (named, among others, the “mayor”) directly elected by the relevant territorial community, where that institution would be responsible for the direct implementation of laws, the decisions of the Government, and those of the municipal council. Thus, should the legislature decide to establish such a single-person municipal institution, it would have to undertake a review of Article 119 of the Constitution. It was noted that this should be carried out by the legislature before the entry into force of this ruling of the Constitutional Court.

The separate opinion by Justice Danutė Jočienė was submitted in this case.