The Constitutional Court terminates judicial proceedings in the case on the norms of the Law “On National Referendums and Legislative Initiatives”
Today, on 19 December 2012, the Constitutional Court has proclaimed decision in the case No. 2012‑03‑01 “On the Compliance of the first part of Section 11 and the first part of Section 25 of the Law “On National Referendums and Legislative Initiatives” with Article 1, 77 and 78 of the Satversme.”
Contested Norms
The first part of Section 11 of the Law “On National Referendums and Legislative Initiatives” (hereinafter also – the National Referendums Law): “If the Saeima has not adopted without change as to its content a draft law or a draft amendment to the Constitution submitted by at least one-tenth of the electorate, this draft law or draft amendment to the Constitution must be put to a national referendum.”
The first part of Section 25 of the Law “On National Referendums and Legislative Initiatives”: “If the draft law or the draft amendment to the Constitution has been signed by not fewer than one-tenth of Latvian citizens who were eligible to vote in the previous Saeima elections, the President of Latvia shall submit to the Saeima the draft law or the draft amendment to the Constitution.”
Legal Norms of Higher Legal Force
Article 1 of the Satversme: “Latvia is an independent democratic republic.”
Article 77 of the Satversme: “If the Saeima has amended the first, second, third, fourth, sixth or seventy-seventh Article of the Constitution, such amendments, in order to come into force as law, shall be submitted to a national referendum.”
Article 78 of the Satversme: “Electors, in number comprising not less than one tenth of the electorate, have the right to submit a fully elaborated draft of an amendment to the Constitution or of a law to the President, who shall present it to the Saeima. If the Saeima does not adopt it without change as to its content, it shall then be submitted to national referendum.”
The Facts
The Applicant – thirty members of the 11th Saeima – holds the opinion that the contested norms do not comply with Article 1, 77 and 78 of the Satversme.
The Saeima, in its turn, considers the contested norms to be compatible with Article 1 of the Satversme, but the compatibility of the contested norms with Article 77 and 78 of the Satversme as unexaminable.
Court Findings and Rulings
The substance of the decision in brief
The Court, abiding by its jurisdiction, did not examine the arguments expressed by the Applicant on the best legal political means for dealing with issues of safeguarding and development of Latvia as a nation state. [13.4] Likewise, in view of the fact that the Constitutional Court does not examine the compatibility of draft laws with norms of higher legal force, it did not examine the arguments regarding the draft laws referred to in the concrete application and during the court hearing. [13.5]
The Constitutional Court concluded that the Applicant’s assumption that the contested norms have the deficiencies, referred to in the application, is erroneous. The Court also pointed out that the Applicant requested assessing issues of interpretation and application of the contested norms. The examination of such issues does not fall within the jurisdiction of the Constitutional Court. [23]
The Court pointed out that the implementation of state power is based upon the presumption that every state institution abides by the Satversme and its jurisdiction, as well as duly performs its duties. The issues linked with probable mistakes of the institutions, as well as disputes whether the competent state institutions have or have not performed their functions duly and abided by the procedure, is not the subject of the contested norms, but the subject regulated by other laws, i.e., these issues are regulated in the law “On the Central Election Commission” and the laws regulating judicial proceedings. Thus, the legal substantiation provided by the Applicant is based upon erroneous assumptions regarding the functions and obligations of state institutions. [23]
The Constitutional Court concluded: considering the fact that the Applicant’s legal substantiation of the incompatibility of the contested norms with the norms of higher legal force is founded upon legal policy considerations and assumptions, as well as issues of interpreting and applying the contested norms, it is impossible to continue judicial proceedings in the case. Thus, on the basis of Para 6 of the first part of Section 29 of the Constitutional Court Law, the judicial proceedings in the case are to be terminated.
The substance of the decision: expanded description
On the content of the application
The Court, on the basis of the opinions expressed during the court hearing and the case materials, concludes, that as to its merits the following of the National Referendums Law is contested:
1) the first part of Section 11 and the first part of Section 25, to the extent they:
a) do not envisage the requirement “fully elaborated” with regard to a draft law submitted by the electorate:
b) do not contain criteria for assessing whether a draft law should be considered as being fully elaborated in the meaning of Article 78 of the Satversme (hereinafter – a fully elaborated draft law),
c) none of the state institutions involved in the procedure of electorate’s legal initiative have been envisaged the right and obligation to examine the compatibility of a draft law submitted by the electorate with the requirements of the Satversme,
d) do not envisage an effective mechanism for assessing the legality of the decisions adopted by the state institutions involved in the procedure of electorate’s legal initiative;
2) the first part of Section 25 to the extent it allegedly imposes a duty upon the President of the State to move forward a draft law, the compatibility of which with the Satversme has not been assessed;
3) the first part of Section11 to the extent it envisages putting for a national referendum a draft law, the compatibility of which with the Satversme has not been assessed.
The Constitutional Court assessed, whether the deficiencies of the contested norms, pointed out by the Applicant, exist and whether legal substantiation has been provided showing that because of exactly these deficiencies the contested norms are incompatible with Article 1, 77 and 78 of the Satversme. [13.1]
The Constitutional Court, examining the Applicant’s claims, assessed, whether the deficiencies pointed out by the Applicant exist also in case the contested norms are examined as a uniform regulation interrelated not only with other norms of the National Referendums Laws, but also with other laws, inter alia, the law “On the Central Election Commission”. [16]
On the obligation to submit a fully elaborated draft law (Claim 1a)
The Constitutional Court indicated: even though the text of the contested norms does not contain expressis verbis (explicitly) the words “fully elaborated”, this does not mean that these norms envisage the right of the President of the State or the Saeima to move forwards “each” or “any” draft law submitted by the electorate. The sections of the National Referendums Law, successive to Section 22, thus, also Section 25, refer solely and only to the advancing of such a draft law, which first of all is submitted to CEC [the Central Election Commission], – thus to a draft law, the submission of which to the CEC would be inadmissible, if it failed to comply with the criterion “fully elaborated”. [16]
Thus, the Court recognised the Applicant’s assumption that the contested norms do not envisage the requirement “fully elaborated” to be unfounded. [16]
On the criteria for assessing a draft law (Claim 1 b)
The contested norms, in the view of the Applicant, are allegedly not clear enough because they do not envisage criteria for assessing a draft law, i.e., the concept “fully elaborated” is said to be too abstract. Thus, the norms allegedly collide with the principle of legal certainty. [17, 18]
The Constitutional Court indicated that the content of an abstract legal concept is to be clarified by applying the methods for construing legal norms. It is the obligation of the party applying the law to fill such a concept with content. The general jurisdiction courts, in their turn, exercise control over the issues of applying the law. [18.2]
The Court recognised that it is possible already now to conclude what the requirements that a fully elaborated draft law should meet are, for example:
- it should be presented in the form of a draft law, complying with the requirements of the Saeima Rules of Procedure;
- it cannot provide for such issues, which are not at all to be regulated by law;
- in accordance with the principle of legality it must be recognised that a draft law, which, if it were adopted, would be incompatible with the norms, principles and values included in the Satversme, as well as Latvia’s international commitments, cannot be recognised as fully elaborated. [18.3]
Thus, the Constitutional Court recognised the Applicant’s assumption that the contested norms are so unclear that the electorate, submitting a draft law, cannot anticipate the consequences of their action, unfounded. [18.3]
On the right and obligation of the state institutions to assess the draft law, as well as control of the legality of decisions taken by institutions (paragraph 1c and 1d of the Claim)
The Constitutional Court concluded that the concrete state institutions, which are obliged to assess the draft laws submitted by the electorate, as well as a mechanism for controlling the legality of decisions adopted in this regard, are envisaged in the Satversme, the law “On the Central Election Commission” and the National Referendums Law. The Constitutional Court, examining the materials of the case and hearing the parties to the case, established, that the CEC jurisdiction includes assessment, whether the draft law meets the requirement “fully elaborated”, and that such assessment is performed in practice. [19.3]
The decisions of the state institutions may be appealed according to the procedure set out in the Administrative Procedure Law and the National Referendums Law. [19.3, 20]
Thus, the Applicant’s assumption that none of the state institutions involved in the procedure of electorate’s legal initiative had been granted the right and obligation to assess the compatibility of the submitted draft law with the Satversme or that a mechanism for assessing the legality of decisions adopted by the state institutions has not been envisaged is unfounded. [19.3, 20]
On the role of the President of the State in advancing a draft law (Para 2 of the Claim)
The Constitutional Court indicated: it follows from the first sentence of Section 25 of the National Referendums Law, examining it in interrelation with Section 22 of this Law, that the President of the State may submit to the Saeima only a draft law, which has been previously submitted to CEC, i.e., a draft law, which has been recognised by CEC as fully elaborated. [21]
If the President of the State disagrees with the CEC’s opinion on the compliance of the draft law with the criterion “fully elaborated”, he, in accordance with the functions of the President of the State defined in the Satversme, as well using the legal means at his disposal must ensure that the norms and principles of the Satversme are observed. [21]
Thus, the Applicant’s assumption that the first part of Section 25 of the National Referendums Law imposes a duty upon the President of the State to submit a draft law, the compatibility of which with the Satversme has not been assessed, for examination by the Saeima is ungrounded. [21]
On submitting a draft law, the compatibility of which with the Satversme has not been assessed, for a national referendum (Para 3 of the Claim)
The Constitutional Court recognised that the Saeima Rules of Procedure do not prohibit assessment of the draft law. Thus, the Applicant’s assumption that the first part of Section 11 of the National Referendums Law prohibits the Saeima to assess a draft law submitted by the electorate is unfounded. [22]
The core of the concept of democracy is the implementation of the will of the majority in society. It is also closely linked with the principle of the sovereignty of people. Thus, the decision, whether a draft law or draft amendments to the Satversme, submitted by the electorate, is adopted by the sovereign itself – by the people – according to the procedure set out in the Satversme and the law. Issues linked with possible errors of the institutions, as well as disputes, whether the competent state institutions have or have not performed their functions duly and abided by the procedure, are the subject regulated by other laws, not by the contested norms. [23]
Thus, the Constitutional Court terminated judicial proceedings in the case No. 2012-03-01 “On the Compliance of the first part of Section 11 and the first part of Section 25 of the Law “On National Referendums and Legislative Initiatives” with Article 1, 77 and 78 of the Satversme.”
The Decision of the Constitutional Court is final and not subject to appeal.
Linked case: 2012-03-01