Comparative perspectives on judicial review in Lithuania

Abstract

IN CONFORMITY WITH POST-COMMUNIST TRENDS in Russia and Eastern Europe, Lithuania's political system incorporates an important innovation in the shape of adjudication on the constitutionality of legislative and executive action. Although judicial review was previously unknown there, its introduction in 1992 aroused no undue controversy. This Lithuanian consensus on the need for such a measure is not surprising, as in both Europe and America doctrines of constitutional oversight find a far-reaching application to the governance of moder democracies. There appears to be a vague concurrence with the opinion that, for governments to proceed as planned, it is necessary to have an arbiter whose decisions-whether on spheres of authority or on consistency with the provisions of a constitution-should be final. The concrete particulars of such an arbitral institution, however, have never been devoid of controversy. In the past, some have argued for the merits of Councils of Revision consisting of judicial and executive appointees, while others sought to concede to each branch of government the right to judge the validity of its own action.l Today, however, the prevailing tendency is to accord the courts, and not the politicians, the power to interpret the constitution authoritatively.2 Like most countries that belonged to the continental legal tradition, interwar Lithuania had no institutionalised oversight procedures designed to nullify legislative or executive acts on constitutional grounds. To be sure, it was a commonplace of contemporary political thought that government action had to conform to the constitution. Thus, the constitution of 1922 stated (and that of 1928 restated) that laws contrary to the constitution were without legal force.3 A similar statement could also be found in the constitution adopted in 1938.4 At the time, however, such general beliefs that all agencies of government should be bound by the constitution did not lead to the development of review procedures for voiding acts when they were in conflict with the supreme law of the land.5 Admonitions against unconstitutionality written into Lithuania's basic laws may have been only declaratory restatements of a self-evident truth that the constitution was superior to any ordinary legislative or executive act. More important perhaps, they could have been construed as a licence granted to the central authorities to oversee the legality of government operations at the local level. The following paraphrased passages in that country's constitutions strengthened the suspicion that