The restrictions on combining the offices of a local government’s councillor comply with Article 91 of the Satversme
On 17 December 2019, the Constitutional Court passed the judgement in case No. 2019‑03‑01 “On Compliance of Para 4 of Section 38 (2) of the law “On Local Governments” with the First Sentence of Article 91 of the Satversme of the Republic of Latvia”.
The Contested Norm
Para 4 of Section 38 (2) of the law “On Local Governments” provides that in addition to the restrictions for combining offices stipulated in the law “On Prevention of Conflict of Interest in Activities of Public Officials”, a councillor of the local government council may not hold the office of the head of a local government institution or his or her deputy, except in institutions performing the autonomous functions of the local government laid down in Para 4, 5 and 6 of Section 15 of the law “On Local Governments”: to provide for the education of residents, to maintain culture and facilitate the preservation of traditional cultural values and the development of creative folk activity, and to ensure access to health care, as well as to promote a healthy lifestyle of residents and sport.
The Norm of Higher Legal Force
The first sentence of Article 91 of the Satversme of the Republic of Latvia (hereinafter – the Satversme): “All human beings in Latvia shall be equal before the law and the courts.”
The Facts
The case was initiated with respect to an application by the councillor of the Rauna Regional Council Aivars Damroze. The applicant had been made administratively liable for violating the prohibition established by the contested norm because, while being a councillor of the local government, was also in the position of the head of an institution of social care and rehabilitation.
The applicant notes that, pursuant to the contested norm, a councillor of a local government council has the right only to take the position of the head of a local government’s institution that performs the autonomous functions of a local government indicated in the contested norm. However, a councillor of a local government council has no right to take the position of the head of a local government’s institution, which performs similar yet other autonomous functions, inter alia, the function of social care. The applicant holds that the differential treatment of the restrictions on combining the offices of a local government’s councillor lacks a legitimate aim.
The Court’s Findings
On the scope of Article 91 of the Satversme
Article 91 of the Satversme comprises the principle of equality, which guarantees the existence of a uniform legal order. However, the legislator enjoys different discretion with respect to different legal matters. This finding of the Court is applicable also to reviewing the compatibility of a legal norm with the equality principle. Therefore, in assessing the compatibility of a legal norm with Article 91 of the Satversme, the legal relationship that this norm regulates must be taken into account. [10.]
The subject regulated by the contested norm
The Constitutional Court noted that the contested norm had been adopted to fulfil the obligation that followed from the principle of good governance to prevent the conflict of interests in the activities of public officials. The aim of the regulation on preventing the conflict of interests is to ensure that all public officials act in public interests, preventing the impact of the personal or financial interests of the public officials, their relatives or business partners upon the public officials’ activities. Likewise, the aim of the regulation is to promote transparency in the activities of public officials and accountability before society, as well as public trust in the activities of public officials. The purpose of the restriction on combining offices, included in the contested norm, is to ensure that a person does not hold, at the same time, several offices that are in the relationship of subordination. However, the principle that public offices cannot be combined allows setting some exemptions, in determining of which the legislator enjoys certain discretion. [11.2., 11.3.]
The Constitutional Court found that the contested norm allowed combining the office of the councillor with such offices of the heads of local government institutions, which perform the autonomous functions referred to in Para 4, 5 and 6 of Section 15 (1) of the law “On Local Governments”, but did not allow combining of offices with respect to heads of such institutions, which perform the autonomous functions of a local government referred to in Para 7 of Section 15 (1) of the law “On Local Governments”. A person’s right to demand the permission to hold simultaneously several offices within public administration follows neither from the Satversme nor any other national or international legal norms binding upon Latvia. The Applicant, however, requests making an exception with respect to him that the legislator has set in the framework of public administration. [11.3.]
The Constitutional Court recognises that the legislator had not only the discretion but also the obligation to organise the work of public administration in compliance with the values included in the Satversme, as well as the principle of separation of powers and the principle of good governance. In the context of the equality principle, in defining the limits of the legislator’s discretion in organising the public administration, it must be assessed, whether the legislator has not acted arbitrarily. To verify this, it must be examined, whether the contested norm has objective grounds; i.e., whether the contested norm has a legitimate aim, whether the contested norm has been adopted in compliance with the principle of good legislation, and has been chosen on the basis of objective criteria, as well as whether the contested norm reaches the legitimate aim and is not obviously disproportional. [11.3.]
The legitimate aim of the contested norm
The Constitutional Court found that too extensive restrictions on combining offices for local governments that were small in terms of population could deny the possibility to attract persons with appropriate qualification to working in the council. Hence, the legitimate aim of the contested norm is to protect the order of a democratic state, by facilitating more effective work of a local-government and more extensive and inclusive democratic representation in local government, at the same time preventing conflicts of interest in the activities of local government officials. [12.]
The contested norm has been adopted in compliance with the principle of god governance and had been chosen on the basis of objective criteria
The Constitutional Court recognised that the legislator, in preparing the draft law, which included the contested norm, had considered various options with respect to restrictions on combining of offices and exemptions from these restrictions in the framework of a local government. The legislator examined the contested norms repeatedly at the sittings of the responsible Saeima committee and assessed its compliance with legal norms of higher legal force. The Constitutional Court did not have any doubts that the aforementioned criteria had been chosen objectively. I.e., the legislator had concluded that exactly those institutions performing the autonomous functions of local governments that were referred to in Para 4, 5 and 6 of Section 15 (1) of the law “On Local Governments” were present in local governments with small number of population and, thus, by establishing an exemption to combining offices with respect to the heads of these institutions and allowing them to take simultaneously the office of a local government’s councillor, more extensive and inclusive democratic representation would be ensured in local governments. [13.]
The contested norm reaches the legitimate aim and is not obviously disproportional
The Constitutional Court found that the exemptions established by the legislator to restrictions on combining offices reached the legitimate aim since they expanded the circle of those persons who would be interested in standing for the office of the local government councillor without being afraid of losing the office that they already held. [14.1.]
The Constitutional Court noted that the legislator had defined exemptions to the restriction on combining offices narrowly and had provided objective grounds for their necessity. The Constitutional Court did not establish that the restriction on an individual’s rights would obviously outweigh the benefit gained by society. [14.2.]
The Constitutional Court found that the contested norm had not been adopted arbitrarily and that the solution chosen by the legislator did not obviously contradict the legal principles derived from the basic norm of a democratic state governed by the rule of law and other norms of the Satversme. Thus, the legislator, in adopting the contested norm, has exercised its discretion duly and has not violated the equality principle. [15.]
The Constitutional Court held:
to recognise Para 4 of Section 38 (2) of the law “On Local Governments” as being compatible with the first sentence of Article 91 of the Satversme of the Republic of Latvia.
The judgement by the Constitutional Court is final and not subject to appeal, it shall enter into force on the date it is published. The judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the judgement in Latvian is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2019/03/2019-03-01_Lemums_ierosinasana.pdf#search=
Linked case: 2019-03-01