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Content updated: 21-05-2019 13:09

The possibility, entrenched in the Law on the Government, of appointing an interim director of a theatre or a concert establishment is not in conflict with the Constitution and laws

27-04-2018

By its ruling adopted today, the Constitutional Court has recognised that Item 35 of the Description of the Procedure of Competitions for the Positions of the Heads of National, State, and Municipal Theatres and Concert Establishments (hereinafter referred to as the Description) is not in conflict with the Constitution, Item 7 of Paragraph 2 of Article 3 of the Law on the Fundamentals of Lawmaking, Paragraph 2 of Article 2, Article 3, and Item 2 of Article 22 of the Law on the Government, as well as Paragraph 1 of Article 11 of the Law on Professional Performing Arts.

The impugned Item 35 of the Description stipulates that, if a theatre or a concert establishment, due to unforeseen circumstances, is left without a head, the institution exercising the rights and duties of the owner of this establishment may, by unilateral decision, charge another person with acting temporarily (but not more than a year) as the head of the said establishment until the appointment of the new head of this establishment who has won a competition.

A group of members of the Seimas, the petitioner, argued that such a legal regulation established by means of a government resolution is in conflict with Paragraph 1 of Article 11 of the Law on Professional Performing Arts (hereinafter referred to as the Law), because, according to this paragraph, heads of theatres and concert establishments should be recruited only by way of a competition, and the Government may only determine the procedure for organising a competition, but not another way of recruitment to the said position.

According to the interpretation provided by the Constitutional Court, the requirement, established in Paragraph 1 of Article 11 of the Law, for the recruitment of heads of theatres or concert establishments by way of a competition applies only when the head of such an establishment is appointed for a five-year term, as established by law. This provision cannot be interpreted as imposing a requirement for the recruitment of interim heads who are appointed due to unforeseen circumstances, since such a requirement would be irrational and impossible to fulfil. Consequently, the Constitutional Court held that Paragraph 1 of Article 11 of the Law and Item 35 of the Description regulate different legal situations: the recruitment of the head of a theatre or a concert establishment by way of a competition and his/her appointment for a five-year term, and the appointment of a person as an interim head of a theatre or a concert establishment in cases where the position of the head of such a theatre or such a concert establishment became vacant due to unforeseen circumstances.

Moreover, as noted by the Constitutional Court, when adopting the impugned legal regulation, the Government was carrying out the requirement (arising from the Law on Budgetary Establishments and the Law on Public Establishments) that a theatre or a concert establishment must always have a head who must ensure the continuity of the activities of this establishment, the effective exercise of the functions assigned to it, the implementation of the set objectives, and the rational use of the establishment’s funds and assets.

Consequently, the Constitutional Court found that Item 35 of the Description is not in conflict with Paragraph 1 of Article 11 of the Law.

In assessing the compliance of Item 35 of the Description with the Law on the Fundamentals of Lawmaking and the Law on the Government, the Constitutional Court noted that, in view of the fact that Item 35 of the Description does not establish a different legal regulation from that laid down in Paragraph 1 of Article 11 of the Law, the impugned legal regulation is not in conflict with the specified laws, either.

The Constitutional Court emphasised that Items 2 and 7 of Article 94 of the Constitution (which state that the Government executes laws, the resolutions of the Seimas on the implementation of laws, as well as the decrees of the President of the Republic; the Government discharges other duties prescribed to it by the Constitution and other laws), as well as the constitutional principles of a state under the rule of law and responsible governance, give rise to the duty of the Government to ensure the effective enforcement of laws, including in cases where the law does not contain a specific task for the Government. This duty of the Government also embraces the duty to adopt substatutory acts necessary for ensuring the continuity of the activities of the establishments financed from the state budget and ensuring the proper discharge of the functions assigned to them. In so doing, the Government must abide by the valid laws and, when enforcing certain laws, must not violate others. Taking into account that the regulation laid down in Item 35 of the Description was intended to fulfil the requirement, arising from the Law on Budgetary Establishments and the Law on Public Establishments, that a theatre or a concert establishment must always have a head, and that this regulation is not in conflict with the other laws, the Constitutional Court concluded that there are no grounds for stating that Item 35 of the Description is in conflict with the Constitution.

The Constitutional Court also noted that, although Item 35 of the Description does not establish the requirements for a person appointed as an interim head of a theatre or a concert establishment, there are grounds for stating that the institution exercising the rights and duties of the owner of the theatre or the concert establishment, when appointing, in the circumstances provided for in this item, an interim head of the theatre or the concert establishment, should apply the requirements, established in Paragraph 2 of Article 11 of the Law, for compliance with the criteria of good repute, as well as the qualification requirements, which are referred to in Paragraph 3 of the same article and which must be determined by the Minister of Culture, for heads of theatres or concert establishments.