THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 2/97 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of the Republic of Lithuania s Law On the Amendment of and Supplement to the Law on the Governing of a County, as well as the Recognition of the Law on the Government Representative as Null and Void, as well as the Resolution of the Seimas of the Republic of Lithuania On the Supplement to the Republic of Lithuania s Civil Service List of the Positions of A Level Functionaries of 12 December 1996 with the Constitution of the Republic of Lithuania Vilnius, 18 February 1998 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, and Juozas Žilys The court reporter Daiva Pitrėnaitė Seimas members Vytenis Povilas Andriukaitis and Roma Dovydėnienė, acting as the representatives of a group of Seimas members, the petitioner Seimas member Kęstutis Skrebys and Genovaitė Rokickienė, an adviser at the Public Administration Reforms and Municipal Affairs Committee of the Seimas, acting as the representatives of the Seimas, the party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 January 1998, in its public hearing, considered case No. 2/97 subsequent to the petition submitted to the Court by a group of Seimas members, the petitioner, requesting an investigation into whether Articles 1, 2, 3, 5 of Chapter 1 and Article 1 of Chapter 2 of the Republic of Lithuania s Law On the Amendment of and Supplement

2 2 to the Law on the Governing of a County, as well as the Recognition of the Law on the Government Representative as Null and Void were in compliance with Paragraphs 1, 2 and 3 of Article 123, Article 120, and Paragraph 2 of Article 5 of the Constitution, as well as whether Items 3, 4, 5, 6 and 7 of Chapter IV of Article 2 of the Resolution of the Seimas of the Republic of Lithuania On the Supplement to the Republic of Lithuania s Civil Service List of the Positions of A Level Functionaries of 12 December 1996 were in compliance with Paragraphs 1, 2 and 3 of Article 123, Article 120, and Paragraph 2 of Article 35 of the Constitution, and Paragraphs 2 and 3 of Article 6 of the Republic of Lithuania s Law on Functionaries. The Constitutional Court has established: I On 12 December 1996, the Seimas adopted the Republic of Lithuania s Law On the Amendment of and Supplement to the Law on the Governing of a County, as well as the Recognition of the Law on the Government Representative as Null and Void (Official Gazette Valstybės žinios, 1996, No ), as well as the Resolution On the Supplement to the Republic of Lithuania s Civil Service List of the Positions of A Level Functionaries (Official Gazette Valstybės žinios, 1996, No ). A group of Seimas members, the petitioner, requests the Constitutional Court to investigate whether (1) Articles 1, 2, 3, 5 of Chapter 1 and Article 1 of Chapter 2 of the Republic of Lithuania s Law On the Amendment of and Supplement to the Law on the Governing of a County, as well as the Recognition of the Law on the Government Representative as Null and Void (hereinafter in the ruling referred to as the impugned law) are in compliance with Paragraphs 1, 2 and 3 of Article 123, Article 120, and Paragraph 2 of Article 5 of the Constitution; (2) Items 3, 4, 5, 6 and 7 of Chapter IV of Article 2 of the Resolution of the Seimas of the Republic of Lithuania On the Supplement to the Republic of Lithuania s Civil Service List of the Positions of A Level Functionaries of 12 December 1996 (hereinafter in the ruling referred to as the impugned resolution) are in compliance with Paragraphs 1, 2 and 3 of Article 123, Article 120, and Paragraph 2 of Article 35 of the Constitution, as well as Paragraphs 2 and 3 of Article 6 of the Republic of Lithuania s Law on Functionaries. II The request of the petitioner is based on the following arguments. 1. By means of the impugned law, the Seimas replaced the notion county governor by that of county chief, as well as broadened the competence of the county chief by granting him the

3 3 right to supervise as to how municipalities observe the Constitution of the Republic of Lithuania and laws and whether they implement government resolutions; to check whether decisions adopted by joint or non-joint self-government institutions respect the rights of citizens and organisations, established the rights and powers of the county chief as regards the questions of legal supervision of municipal activities, and determined implementation of the said rights and powers. By Article 1 of Chapter 2 of this law the Seimas recognised the Law on the Government Representative as null and void. Chapter X of the Constitution is entitled Local Self-Government and Administration. The articles of this chapter define clearly local self-government, the rights of municipalities, selfgovernment and administration reform, and establish that in higher level administrative units the administration shall be organised by the Government. However, this chapter of the Constitution mentions individually the supervisory functions of the government representative in certain parts of Article 123. Paragraphs 1, 2 and 3 of Article 123 of the Constitution provide: In higher level administrative units, the administration shall be organised by the Government according to the procedure established by law. Representatives shall be appointed by the Government to supervise that the Constitution and the laws are observed, and that the decisions of the Government are implemented by municipalities. The powers of government representatives and the procedures of their implementation shall be established by law. The petitioner points out that this is not a matter of coincidence. The Constitution is an integral legal act, and this wording of Article 123 of the Constitution which individualises supervisory functions of the government representative must be assessed in the context of other articles of the Constitution. In doing so, one is also to take account of Lithuanian legal traditions. Looking back into history, one can notice that in Lithuania there existed general legal supervision of municipalities. In , under the Provisional Basic Law of the Republic of Lithuania, this was exercised by the prosecutor s office. Article 118 of the Constitution of 1992 established other and precise functions of prosecutors: prosecution on behalf of the State, carrying out criminal prosecutions and supervision of the activities of interrogative bodies. Meanwhile, an individual official the government representative was provided for the purpose of exercising general legal supervision of municipalities. Under the Constitution his powers and the procedures of their implementation must be established by law. On 1 July 1993, the Seimas passed the Law on the Government Representative (Official Gazette Valstybės žinios, 1993, Nos , ; 1996, No ). Article 1 of the aforesaid law prescribes: The representative of the Government of the Republic of Lithuania shall supervise whether municipalities observe the Constitution of the Republic of Lithuania and the laws, and whether they

4 4 implement Government decisions. The government representative must check whether the decisions adopted by joint or nonjoint self-government institutions respect the rights of citizens and organisations, and whether officials of municipalities implement government resolutions. Article 7 of the said law established the procedure of appointment to and dismissal of the government representative from office, a prohibition on holding any other office, etc. It was also established therein that the government representative shall be assisted in implementation of the granted powers by the Government Representative Service. The employees of this service were to be admitted and dismissed by the government representative himself. On 7 July 1994, in the course of the implementation of self-government reform, the Republic of Lithuania s Law on Local Self-Government was adopted. Paragraph 1 of Article 28 of the said law stipulates: The compliance of municipalities with the Constitution and laws of the Republic of Lithuania and decisions of the Government shall be supervised by the government representatives under the procedure established by law. The petitioner calls one s attention to the fact that on 14 December 1993 the Seimas adopted the Resolution On the Framework of the Legal System Reform and Its Implementation by which the framework of the legal system reform was approved and provided therein (see p. 5): Officials of the prosecutor s office who have been exercising general supervision shall be granted an opportunity either to become prosecutors, judges of local courts, those of regional courts, those of the Court of Appeal, government representatives, Seimas ombudsmen, or to perform another legal work in the aforesaid institutions. The petitioner concludes that in this context it is possible to understand that general legal supervision is transferred to the institution of the government representative. After the Seimas had adopted the Law on the Government of the Republic of Lithuania on 19 May 1994, Article 22 of the said law defined the relations of the Government with municipalities as follows: The Government of the Republic of Lithuania shall: (1) through its appointed representatives monitor the municipalities adherence to the Constitution and laws of the Republic of Lithuania and implementation of the decisions of the Government; and (2) together with municipalities establish general directions of the development of social security, health, education and culture. The petitioner maintains that the institution of the government representative indicated in Article 123 of the Constitution was consolidated in the aforementioned legal acts as an individual institution which is nominated by the Government. This institution exercised legal supervision of municipalities, it had at its control special service and acted pursuant to a special law and not in

5 5 accordance with governmental assignments or directions. The petitioner is of opinion that after the Seimas had adopted the impugned law, the institution of the government representative provided for by Article 123 of the Constitution was abolished, although this contradicted the requirements of Article 123 of the Constitution. On the grounds of an analysis of corresponding provisions of the Law on Local Self- Government, those of the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries, and those of the Law on the Governing of a County, the petitioner concludes that a municipality is treated as a decentralised, i.e. comparatively independent system of administration, while the functions of centralised state administration are exercised through counties. Alongside, the petitioner recognises that despite the said differences, counties and municipalities are united by common objectives. This also conditions the necessity of their cooperation along with the necessity to coordinate centralised state administration with decentralisation. The petitioner maintains that upon the adoption of the impugned law and granting the supervisory functions of the government representative to the county chief, pre-conditions were created for the Government to exert political influence through the county chief on municipalities, as well as to broaden Government powers in respect to municipalities and infringe their rights which are secured by Article 120 of the Constitution. In the opinion of the petitioner, such an expansion of Government powers also contradicts Paragraph 2 of Article 5 of the Constitution which consolidates the principle of authority powers limitation. Alongside, the petitioner points out that, while passing the impugned law, by Article 1 thereof the Seimas replaced the notion county governor by that of county chief. Article 123 of the Constitution stipulates that in higher level administrative units, the administration shall be organised by the Government according to the procedure established by law. The Law on the Governing of a County of 15 December 1994 consolidated the notion county governor. By A Dictionary of Contemporary Lithuanian, the word chief (Lith. viršininkas) designates a person in charge of either an establishment, the post-office, the guard, or the station, etc., while the word to govern (Lith. valdyti) has several meanings: to have under subjection, to have in one s ownership, to run something. In addition, Volume 17 of A Dictionary of the Lithuanian Language gives the following meanings of the word to govern (Lith. valdyti): to keep order (of the work, of affairs), to direct, to manage, to regulate someone s actions etc., in short, to accomplish more functions if compared to the situation when one is a chief. Besides, in the Lithuanian legal tradition the word chief is more linked with a centralised and imperative governance to which teams of lower rank are subordinated. Therefore, in view of creation of legal terminology and semantics of designations, one may raise a well-founded question as to what term county governor or county chief is more in compliance with the requirements of

6 6 Article 123 of the Constitution. The petitioner is certain that the word chief reflects more a directive, centralised and imperative administration and somewhat corresponds to the name of the person in charge of an individual establishment or service. Therefore, in his opinion, the term county governor reflects more precisely the organisation of administration as it is under stipulation of Paragraph 1 of Article 123 of the Constitution. 2. As regards the other impugned act the Seimas resolution in his request the petitioner presented the following arguments. For the purpose of the administration reform, on 4 April 1995 the Law on Functionaries was passed. Article 2 thereof defines as to what state and municipal politicians are: State politicians shall include the President of the Republic of Lithuania, members of the Seimas, the Prime Minister, and ministers. Municipal council members shall be municipal politicians. This law also established that the civil service is the performance of duties in the Seimas, the institutions of the President of the Republic, the Government, other state institutions, and structural divisions of municipalities in accordance with the list of positions of the civil service which is kept by the Government. The list names the positions of functionaries and specifies the level ( A or B ) to which they are assigned. State or municipal functionaries of A level are servants appointed by the Seimas, the President of the Republic, the Government and other servants specified in the list of positions who assist state politicians in fulfilling their functions. The service of the said functionaries is connected with the duration of the term of office of their respective head officers. Functionaries of B level are servants, appointed by the Seimas, the President of the Republic, the Government, as well as other servants indicated in the respective list of positions. The service of these functionaries is not connected with the term of office of the institutions which appoint them. The Seimas, on the proposal of the Government, assigns the positions to A level on the list of positions. By means of its Resolution On the Republic of Lithuania s Civil Service List of the Positions of A Level Functionaries of 27 June 1995, the Seimas approved the list of positions of A level functionaries, while by its Resolution (No. 1081) On the Approval of the Republic of Lithuania s Civil Service List of Positions of B Level Functionaries 3 August 1995, the Government approved the list of positions of B level functionaries. This list of B level functionaries includes the office of the service of the government representative in the county, as well as that of the administration of the county governor. After the Seimas had adopted the impugned resolution, the county chief and the deputy county chief were included into the list of positions of A level functionaries. The petitioner draws the conclusion that thereby the county

7 7 chief becomes dependent on politicians who exercise their functions, as well as on the political party which is in power. When exercising legal supervision of municipalities, the county chief will not be able to be impartial as his decisions may be influenced by political, however not legal, arguments. Meanwhile, Paragraph 3 of Article 123 of the Constitution establishes legal but never political supervision of municipalities. Moreover, the Seimas included heads (directors general, directors, chiefs) of Government establishments (departments, services, inspectorates), as well as those of departments, services, inspectorates or other institutions of the civil service established under ministries, along with ministerial advisers, experts, and ministerial representatives for the media into Items 3, 4 and 5 of Chapter IV of Article 2 of the impugned resolution. Under Article 6 of the Law on Functionaries, state functionaries of A level shall be servants appointed by the Seimas, the President of the Republic, the Government and other servants specified in the list of positions who assist state politicians in fulfilling their functions, while state functionaries of B level, along with the other servants specified in the list of positions, shall be servants, appointed by the Seimas, the President of the Republic, the Government, the structural divisions, ministries, Government establishments (departments, services, inspectorates), departments, services, inspectorates, and other institutions of the civil service founded at ministries. The petitioner contends that Chapter IV of Article 2 of the aforesaid Seimas resolution contradicts Article 6 of the Law on Functionaries. Paragraph 2 of Article 35 of the Constitution provides: No person may be forced to belong to any society, political party, or association. In the opinion of the petitioner, in the case that a person is politically self-determined and consents to assist a state politician in fulfilling his functions, then it is evident and understandable that he voluntarily links himself with either one or another state politician or one or another political party. The petitioner contends that after the list of A level functionaries had been expanded, the heads of Government establishments (departments, services, inspectorates), as well as those of departments, services, inspectorates or other institutions of the civil service founded at ministry, in the case that they wish to hold their office, must submit to one or another political party which is in power, and assist a politician in fulfilling his political functions. Therefore, the petitioner is of opinion that such an expanded list of A level functionaries contradicts Paragraph 2 of Article 35 of the Constitution as it creates pre-conditions that functionaries who wish to hold their office will have to submit to political requirements of the ruling party or coalition of parties and thereby to link themselves against their will with political activities. III In the course of preparation of the case for the court hearing K. Skrebys, a representative of

8 8 the party concerned, presented the following counter-arguments. 1. The Constitution does not contain any provision which prescribes that the aforesaid functions (county governing and supervision of municipal activities) must be fulfilled by individual institutions. Under Paragraphs 1, 2 and 3 of Article 123 of the Constitution, the Government is commissioned to organise both the administration in higher level administrative units and supervision as to how municipalities observe the Constitution and the laws. By the Constitution, the Government fulfils the said assignment under the procedure established by law. Therefore, the representative maintains that in deciding that only one institution will exercise both the administration and supervision the Seimas has not violated the Constitution. The fact that Article 123 of the Constitution provides for the administration and supervision in its individual parts should, in the opinion of the representative, be commented as a means to define individual functions but not as a necessity to adopt special laws as for these issues and to determine that individual institutions must fulfil the functions connected with the said issues. Therefore, the argument of the request that, as regards these questions, special laws had been adopted and individual institutions to implement these functions had been provided for before, is not sufficient grounds to maintain that the Seimas was not entitled to decide this issue in a different way and to commission one institution only with fulfilment of these functions. The representative of the party concerned does not agree with the statement of the petitioner that after the county chief had been granted the powers to supervise municipal activities, preconditions were created for the Government to exert political influence on municipalities and restrict their rights. Firstly, the powers of the county chief concerning issues of supervision of municipal activities are strictly defined by the Law on the Governing of a County; secondly, these powers are identical to those previously held by the government representative; thirdly, former government representatives were not less subordinated to the Government than the county chief is. 2. The representative of the party concerned points out that the essential argument in the request is as follows: after the list of positions of A level functionaries had been expanded by the Seimas resolution with the positions of the heads (directors general, directors, chiefs) of Government establishments (departments, services, inspectorates), as well as those of departments, services, inspectorates or other institutions of the civil service founded at ministries, as well as with the positions of the county chief and the deputy county chief, the list of positions of A level functionaries became incompatible with the provision of the Law on Functionaries under which functionaries of A level shall be servants who assist politicians in fulfilling their functions. The representative maintains that one has to recognise that this incompatibility has actually occurred. Therefore, this provision has been corrected in the course of preparation of a draft Law on Functionaries of new wording. This draft Law on Functionaries, however, has not been presented to

9 9 the Seimas as the Law on the Civil Service is being drafted and there is still not clear whether the Law on Functionaries will be necessary at all. The representative of the party concerned noted that the list of positions of A level functionaries had been expanded reasonably as the persons who are appointed to these positions, as regards the importance of their powers, must be linked with the time period for which the Prime Minister and the ministers are empowered. Therefore, as to its content, the expansion of the list is in conformity to the concept of the Law on Functionaries. IV The representatives of the petitioner once again emphasised during the court hearing that the sources of municipal supervision come from the former general supervision which had been exercised by the prosecutor s office. Upon the adoption of the Constitution of 1992, a new institution was created, i.e. that of the government representative. Its legal status was defined by the respective law. The representatives are of opinion that the institution of the government representative was delegated to perform that job that had been performed by the prosecutor s office in the sphere of the supervision of municipal activities. The representatives also certified that the tendency when county chiefs become functionaries of A level is a dangerous one as through them the ruling party may exert a direct influence on municipalities and subject their decisions to its aims. V During the court hearing the representatives of the party concerned reiterated their arguments set forth previously and indicated that supervision is a function of administration, therefore, there is no evil in the fact that the supervision of municipalities has been transferred to county chiefs. The Constitution mentions the function of the supervision, therefore, one cannot assert that the government representative is a constitutional institution. In addition, the representatives of the party concerned presented the following explanations: The possibilities of the Government to exert political influence on municipalities through the county chief have remained the same as they were through an individual government representative. Of course, this possibility has slightly diminished as, instead of the former two, only one Government establishment remained. The powers of the Government in respect to municipalities have remained intact as former provisions of the Law on the Government Representative were transferred into another law, i.e. the Law on the Governing of a County. Paragraph 3 of Article 123 of the Constitution provides that the powers of government representatives and the procedures of their implementation shall be established by law. A mere fact

10 10 that one law has been repealed and the same powers as well as the procedures of their implementation have been moved to another law could not have placed the law in contradiction with the Constitution. It is not correct to conclude that the Constitution has established legal but not political supervision of municipalities. The Constitution has not named such a supervision either political or legal. Such a supervision is established by Paragraph 2 and not 3 of Article 123 of the Constitution. Paragraph 2 reads that representatives shall be appointed by the Government to supervise. County chiefs are also government representatives who are appointed by the Government under the same procedure, therefore, there could not have occurred any contradiction to the Constitution. Not a single new provision has been adopted by the impugned law which could create a precondition for restricting the rights of municipalities. A municipality may lodge a complaint against illegal actions of the county chief with the court. The response acts of the county chief proposals or demands directed to the municipalities provided these governments persist in believing that they are acting correctly have remained non-compulsory. The county chief may contest municipal decisions only in court. As regards his status, in view of the supervision of municipal activity, the county chief is the same government representative who is appointed by the Government on the proposal of the Prime Minister as the former government representative whose position has been named in the same manner by the legislature. The exposition of Article 123 of the Constitution provides the legislature with broader opportunities to choose ways of decentralisation and deconcentration of state authority. The position of the county chief belongs to positions to which servants are appointed by the Government. The servants appointed by the Government, as well as the Seimas or the President of the Republic, do not assist politicians in fulfilling their functions but must exercise the powers granted to them by themselves. The statement that such an expanded list of A level functionaries contradicts Paragraph 2 of Article 35 of the Constitution as it creates pre-conditions that functionaries who wish to hold their office will have to submit to political requirements of the ruling party or coalition of parties and thereby to link themselves against their will with political activities is not correct as to both its content and affirmation. It is incorrect regarding its content as Paragraph 2 of Article 35 of the Constitution prohibits from forcing anyone to belong to any society, political party, or association, meanwhile, on the whole, the Seimas resolution concerning the expansion of the list of A level servants does not mention any parties or party membership. It is not correct regarding its affirmation as state servants must comply with state authority political requirements which are expressed in legal acts or legitimate instructions of politicians but never those of the ruling party.

11 11 The Constitutional Court holds that: 1.1. Article 10 of the Constitution provides that the territory of the State of Lithuania shall be integral and shall not be divided into any state derivatives. It is this provision which contains the constitutional consolidation of the unitary state system and expresses the idea of a united and indivisible state. However, for reasons of rational organisation of administration, the territories of all states, including those of unitary ones, have their own internal structure, i.e. they are divided into certain administrative units where corresponding state institutions are formed. This is also provided for in Article 11 of the Constitution: The administrative divisions of the territory of the State of Lithuania and their boundaries shall be determined by law. One should note that these constitutional norms are specified and further developed by the norms of Chapter X entitled Local Self-Government and Administration. First, the said chapter establishes no less than two levels (links) of administrative units. Second, different administration systems are established for administrative units of different levels (links): the Constitution guarantees the right of selfgovernment to the lower (i.e. first level) units, while in the higher (i.e. second level) administrative units administration is organised by the Government. These constitutional provisions are particularised in the Law on the Territorial Administrative Units of the Republic of Lithuania and their Boundaries of 19 July Article 1 of the said law prescribes that counties and territories of municipalities shall be territorial administrative units of the Republic of Lithuania. Article 2 of the said law stipulates: The territory of a municipality is a territorial administrative unit of the Republic of Lithuania which is governed by local self-government institutions elected by the local community pursuant to the Republic of Lithuania s Law on Local Self-Government and other laws. The territory of a municipality shall be formed out of residential areas. The basic criteria for the formation of the territory of a municipality are its preparedness to manage and maintain its environment, communal economy, to provide communal services to local inhabitants and to perform other functions provided for in the Republic of Lithuania s Law on Local Self- Government. The county is the higher territorial administrative unit of the Republic of Lithuania, the governing of which shall be organised by the Government of the Republic of Lithuania pursuant to the Law on the Governing of a County and other laws. The county shall be formed out of the territories of municipalities that have common social, economic, and ethnic and cultural interests.

12 12 Thus, two systems of administration have been formed in administrative units of Lithuania: a system of self-government which is organised in the lower level administrative units (the law refers to them as territories of municipalities), and a system of local administration which is organised by the Government in the higher level administrative units (counties) The fundamental principles of organisation and activities of local self-government are consolidated in the Constitution. This is also in line with the provision of Article 2 of the European Charter of Local Self-Government stipulating that the principle of local self-government must be recognised in domestic legislation, and where practicable in the constitution. The Constitution determines local self-government as a public administration system operating on the basis of self-action principles, and which is not directly subordinate to state authority institutions. The analysis of the constitutional norms allows distinguishing the following principles of local self-government: representative democracy, accountability of executive institutions to the representatives, free and independent actions of municipalities within the limits prescribed by law, co-ordination of interests of municipalities and those of the state. The fundamentals of organisation of self-government institutions as defined in Chapter X of the Constitution are particularised as well as the procedures of activities of the said institutions are established by the Law on Local Self-Government of 7 July Article 1 of the said law promulgates that local self-government (hereinafter referred to as self-government ) denotes the right and actual power of the institutions of a municipality which is elected by the residents of an administrative unit of the territory of the Republic of Lithuania, to freely and independently on their own responsibility regulate and manage public affairs and meet the needs of local residents according to the Constitution and laws of the Republic of Lithuania. The territory of a municipality shall be an administrative unit of the territory of the State, the community of residents whereof has the right to self-government guaranteed by the State. One should note that in its many elements the presented conception of self-government is in conformity with the definition of self-government set out in Article 3 of the European Charter of Local Self-Government. Alongside, the Law on Local Self-Government formulates fundamental principles of local self-government. Some of them coincide with the aforementioned constitutional self-government principles, while other principles are new. Thus, self-government presupposes certain freedom and autonomy of activities, as well as independence from state authority institutions. Such freedom, however, is not limitless, while the autonomy does not mean that one may ignore state interests. Therefore, the principle of coordination of interests of municipalities and those of the state is of utmost importance. There are cases when this is expressed by the state supporting municipalities in all ways and forms, or when

13 13 joint actions are coordinated when significant social objectives are being sought, or when the state supervises municipal activities in the form prescribed by law. It should be noted that, in Lithuania, the self-government model is based on the centuries old European tradition of the culture of self-government which later was supplemented by the institution of the administrative supervision and which was formed on the basis of the local (regional) state administration The constitutional provisions as to the state administration are formulated in Paragraph 1 of Article 123 of the Constitution: In higher level administrative units, the administration shall be organised by the Government according to the procedure established by law. Local administration is fulfilment of state administration (i.e. the executive power) functions in particular localities, i.e. respective administrative units. The functions of the local administration are, as a rule, performed by officials appointed by the central authority or institutions formed by the said functionaries which generally act in the name or on the instructions (authorisation) of the central authority. One is of opinion that the local administration is an organic part of the state administration (the executive power) and that it is an extension of state administration into particular locales. Often this is defined as deconcentration of power, i.e. a partial transition of central authority powers into particular locales administrative units. In most European states local administration is organised in higher administrative units, i.e. regions, departments, provinces, prefectures etc. by granting them substantial autonomy. The officials (prefects, governors, commissioners, etc.) appointed by the Government (or, in some places, by Head of State) and directly subordinate to it represent the central authority in such administrative units. These officials in particular locales run a number of state institutions, as well as discharge the functions of coordination and control. Such organisation of local administration in large administrative units, especially when their autonomy is broadened, is commonly referred to as regionalism. The constitutionally consolidated fundamentals of the local administration in Lithuania are disclosed and particularised in the Law on the Governing of a County of 15 December 1994 (herein the said law will be reviewed up to its amendments of 12 December 1996). Article 1 of the said law prescribes: The county is a higher territorial administrative unit of the Republic of Lithuania, the governing of which shall be organised by the Government through the governor of the county, the Ministers and other Government institutions. The government of the county is a constituent part of state administration. The county governor shall be appointed to and dismissed from office by the Government upon the recommendation of the Prime Minister, while a deputy county governor shall be appointed to and dismissed from office by the Prime Minister upon the recommendation of the county governor. To fulfil the functions assigned to him, the county governor forms and is in charge of his administration.

14 14 It is possible to distinguish 3 groups of tasks for the county governor: (1) to implement state policy in the spheres assigned to his administration, and to implement state and inter-regional programmes in the county; (2) to coordinate the activities of the ministries and other structural subdivisions of Government institutions lying within the limits of the county, as well as to coordinate the activities of executive institutions of self-government in implementing regional programmes; (3) to provide for the priority trends of the county development and prepare its programmes. The first group of tasks virtually included general functions of the executive power the content of which is disclosed in Articles 6 11 of the Law on the Governing of a County. The following tasks should be categorised as more important ones: founding, reorganisation and liquidation of establishments and organisations; ensuring their activity; consideration of requests and petitions of natural and legal persons, as well as adoption of decisions regarding such requests and petitions; performance of actions having legal significance; exercise of control and supervisory functions as prescribed by law. The law also provided that the county governor, when discharging the functions assigned to him, and implementing the laws, other legal acts passed by the Seimas, the decrees of the President of the Republic and resolutions of the Government, had to cooperate with the governing institutions of self-government and the state, as well as governing institutions and organisations subordinate to them, and the government representative. The county governor had to notify respectively the Seimas or the Government of the activities and decisions of the subdivisions of state governing institutions if they were not in compliance with the laws, government resolutions or violated the rights of citizens or organisations. If a subdivision of the state governing institution or a higher state governing institution did not repeal or change the disputable decision passed by them, the final decision had to be passed by the Government. Besides the law provided that the Government was entitled to repeal the decrees or other orders of the county governor himself provided they contradicted the Constitution, the laws, other acts passed by the Seimas, the decrees of the President of the Republic and resolutions of the Government. After surveying the Law on the Governing of a County, one may draw the following general conclusions. First, the highest administration official in the county in the hands of whom the most important powers of the executive power were concentrated was the county governor. Second, he was commissioned to discharge common administration functions, including those of certain control and supervision. Third, the powers of the county governor were not limited to the sphere of the activities of state establishments only but also his powers were orientated to subjects not subordinate to him: state establishments as well as institutions of self-government lying within the

15 15 county territory. As a rule, along with other cooperation forms, this was manifested by the rights to coordinate and harmonise a respective activity On 1 July 1993, in implementing constitutional provisions concerning the administrative supervision of self-government institutions, the Law on the Government Representative was adopted which was in force until 12 December Article 1 of this law reiterated constitutional provisions that the representative appointed by the Government had to supervise as to how municipalities observe the Constitution and the laws or fulfil government resolutions. The government representative had to check whether decisions adopted by joint or non-joint self-government institutions respect the rights of citizens and organisations, and whether officials of municipalities fulfil government resolutions. It was established that the government representative had to be appointed to and dismissed from office by the Government on the recommendation of the Prime Minister. The law also provided that the government representative might not hold any other elective or appointive office (save for those in political parties, other political or public organisations), act as a deputy of the municipal council, work in other state or private business, commercial or other establishments, enterprises and public organisations, as well as get any other remuneration save for that established for his office or that for creative work. A respective service assisted the government representative in discharging his powers. Employees of the said service were appointed to or dismissed from office by the government representative himself. In the Regulations for the Activities of the Government Representative approved by the Government by its resolution No. 293 of 19 April 1994 it was established that assignments to the government representative regarding his work questions had to be submitted only by Government decisions in accordance with the Law on the Government Representative, while only the Prime Minister, the Government Secretary, the minister of administration reform and self-government affairs or the secretary of this ministry were entitled to give the government representative instructions as to the questions of organisational and functional matters. To discharge the commissioned functions, the government representative was granted the following rights: to receive decisions (originals) adopted by self-government institutions, as well as the explanations of the persons in charge as to these decisions, while in other cases to receive copies of both the minutes and adopted documents as well as other material; to participate in conferences of self-government institutions with the right to express critical observations or propose to suspend an adoption of decision; to consider complaints of residents concerning decisions of selfgovernment institutions, and to settle or transfer them to other competent officials; to participate in conferences or events of the state institutions when self-government affairs are discussed there; as

16 16 well as to become acquainted with Seimas or Government documents wherein municipal affairs are decided. The government representative could react to any find violation by one of the following forms: (1) by writing a reasoned proposal to the person in charge of the institution that had adopted the act, and requiring to suspend the impugned act immediately and deliberate on its amendment or repeal, and to inform the higher self-government institutions (the council, the board) as to this matter; (2) by his decree suspending implementation of the impugned decision and presenting a reasoned requisition which had to be immediately considered in the session or conference by adopting a decision regarding this requisition; (3) by writing a requisition to the self-government institution that a government resolution be implemented immediately, and requesting that he should be informed in writing, during the indicated time period, about the results of such implementation. The law established that suspended decisions of self-government institutions might not be implemented until the dispute was not decided during the established time period either in the municipality or by court decision. In all cases the government representative and the higher self-government institution according to the level of subordination had to be informed as to the time and place of consideration of government representative requisitions. It was established that in cases when the municipal council or board refused to comply with the requisition of the government representative, or if it did not inform about the implementation of the government representative requisition or government resolution in time, as well as in cases when the said institutions did not repeal illegal acts adopted by them or those adopted by the institutions subordinated to them (the board, mayor, manager, chief of a rural district) within 2 weeks from the day of the reception of the order of the government representative, the government representative had to lodge a complaint against these acts or actions of the officials with a court within 10 days, and he had to inform the Government about the non-compliance with the government resolution. One should note that one can perceive that the sources of the beginning of the institution of the government representative are in the former institution of the government representativeconsultant. As far back as on 8 May 1992, the Regulations for Regional Government Representatives-consultants were adopted by government resolution No Therein it was established that the chief tasks of the government representative-consultant were to look after appropriate implementation of Government socio-economic policy in the particular region, as well

17 17 as to guarantee close links between state and local bodies of authority and administration. In addition to other tasks, the government representative-consultant was commissioned to exercise control as to how the laws were observed in the region and other normative acts were implemented, as well as to inform the Government as to how municipalities implemented the laws and government resolutions and decrees. Thus, after reviewing the legal status of the government representative, one may draw the following conclusions. First, the chief task of the government representative had to check the legal acts adopted by self-government institutions in an attempt to guarantee that they would not contradict the Constitution and the laws, as well as to supervise whether government resolutions were fulfilled. Second, the main ways of supervision were provided for as follows: taking part in the conferences of self-government institutions; check-ups in particular places; reviewing the acts adopted by self-government institutions; consideration of requests and complaints regarding the acts or actions of self-government institutions and their officials; regular reception of local residents. Third, the government representative was entitled to demand that the impugned act be repealed or to require that a government resolution be fulfilled. Besides, he was granted the right to suspend the implementation of the impugned decision, to inform the higher self-government institution about the violation, to lodge a complaint against illegal acts or actions of officials with a court, and to notify the Government about the fact that a government resolution is not being fulfilled. Fourth, the right of final decision in cases when the requirements of the government representative were not being fulfilled was, in essence, left with either the court or the Government. Fifth, the procedure of appointing to and dismissing the government representative from office, his subordination and relations with the Government, as well as the nature of his functions fulfilled, indicate that under the law then in effect, the government representative was an autonomous institution which was directly subordinate and accountable to the Government Comparative constitutional law distinguishes 2 models, which have been formed in the course of history, of self-government activity supervision and control: the administrative supervision and the judicial control. In the countries of the continental law system the administrative supervision of selfgovernment activities have been formed and are dominating. It means that municipalities are supervised by the executive power of the state, i.e. its certain institutions. It is recognised that the judicial control is characteristic of the Anglo-Saxon legal system countries. In this case the notion judicial control is used conditionally and means only passive control, i.e. the courts control nothing on their own initiative, however they consider the complaints regarding the acts adopted by self-government institutions or actions of their officials. On the other hand, the courts also investigate the complaints of self-government institutions in cases when state