Efforts to stay in the tradition of constitutionalism are expressed in the preamble of the Constitution of the Republic of Lithuania approved by the citizens of the Republic of

Lithuania in the Referendum of October 25, 1992: Lithuanian nation...- 'striving for open, just, and harmonious society and law-governed state'.

This expression intends to introduce the 'rule of law' or, as the text specifies, 'law-governed state'. The choice of terminology "rule of law" or "law- governed state" usually depends on the traditions of legal and political thought. In this paper I would like to discuss some practical aspects of this difference.

Superiority of the written Constitution in a hierarchy of laws is stated in the article 7 of the Constitution of the Republic of Lithuania: 'Any law or statute which contradicts the Constitution shall be invalid'.(article 7).

Realization of these ideas rests on practical implementation of the theory of separation of powers.. Legislative, executive and judicial branches of government are relatively independent from each other and act according to the law.

As Lithuanian Constitution states, the powers of the state shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. The scope of powers shall be defined by the Constitution. Thus, not taking into account specifics of presidential powers which are based more on principles of semi- presidential system and on divided judiciary, the structure of the government of Lithuania is in principle quite similar to the structure of the USA government.

Judiciary in the Republic of Lithuania is exercised by the Constitutional Court, established after the restoration of independence, and by the system of courts with the Supreme Court on the top.

Constitutional Court is a new institution in Lithuania. It was established three and a half years ago and designed to exercise judicial review of legislature.

The Constitutional Court 'shall decide whether the laws and other legal acts adopted by the Seimas are in conformity with the Constitution and legal acts adopted by the President and the Government do not violate the Constitution or laws'.( Article 102 of the Constitution).

'The decisions of the Constitutional Court on issues assigned to its jurisdiction by the Constitution shall be final and may not be appealed.(Article 107 of Constitution).

Therefore, according to the Constitution the Constitutional Court is a very powerful body as it has the right to a final decision on Constitutional issues. That makes the status of this Lithuanian judicial body closer to the American, than to ones which exist in some other countries. In France for example the Constitutional Council, which exercises functions of judicial review of legislation, seems to be a consultative body for legislature without legal guarantees for enforcement of its decisions.

Nonetheless, the role and practical implementations of the Lithuanian Constitutional Court in political process are rather different from those of the Supreme Court of the USA. Several reasons may be found in different traditions of legal and political thinking regarding the concept of law and the role of court in the government.

The idea of supremacy of law in the context of legal thought bears two main approaches.

The first one which is based on a positivistic point of view, stresses a role of legislature, that is a role of the state. State enacts laws and regulations which are considered to be the basis for human behavior in a society. A state that follows the requirements of those laws could be regarded as a law-based state. Sense of justice is replaced by formal legality. This tradition was popular in the 19th century Germany. Law - governed state was described as a state which in the acts of legislature determined its citizens' behavior as well as its own.

In this way every state where formal legality works could be recognized as a 'law - governed state'. Under this tradition even the former Soviet Union could have been formally described as a law -governed state, though a vast number of laws, regulations, instructions used to regulate almost every sphere of public life.

Another approach discusses a concept of the "rule of law " which originated in the British constitutional tradition. The unwritten British Constitution in a legal sense rests on some basic acts, bills, numerous precedents of the courts. However, the basis of the rule of law are the decisions of the courts in particular cases. Various aspects of natural law theory play significant role in the decision making. American constitutionalism, on the other hand, is based on similar approach, but presence of the Constitution, as the basic written document, makes slight corrections of the original idea. This written document provides basic principles of social life in a more a precise way.

In the latter approach law making process is a part of the Parliament's and the Court's activity as an interpretation of the Constitution according to various political and legal theories. In the decision-making, the courts follow the text of the Constitution, the precedent made before, or observe tradition, natural law, and the idea of justice in general. Hence the rule of law rests more on the understanding of certain values.

In the contemporary political process of different countries the distinction between these two approaches is quite insignificant. The main values of both traditional approaches have been broadly discussed and adopted during long years of constitutional development. Nonetheless, every country maintains its specific features based on the its own legal tradition.

Lithuanian legal tradition was influenced by the positivistic 'law-governed' approach which came from Germany in the beginning of the 20th century, and enforced by the similar attitudes of the Soviet time. In the academic circles of the pre-war independent Lithuania practical needs for constitutional interpretation and judicial review of legislation were discussed but never implemented in practice. Later on the Soviet system preferred the positivistic approach over the 'rule of law', since the domination of Communist party would have never tolerated another decision maker than the party itself. Therefore. the legislature was just a tool of Communist ruling which strictly determined every action of the court. That was the way how the system worked.

The establishment of the Constitutional Court is a certain revision of constitutional traditions in Lithuania. Constitution of the Republic approved by referendum is one and the only formal law for this court to make decisions. Formally, decisions of the Constitutional court is not a law, but they are final and may not be appealed. The Seimas - the legislative body -, in fact, shares law making functions with the Constitutional Court - judicial body. Since the court is supposed to play a quite significant role in the process, this is a step towards the concept of British-American rule of law. But in practice the actual role of the court does not seem to be so evident, and legislative body continues to be number one actor. Why is it so and how does it look in practice?

Lithuanian lawyers educated during the Soviet period, have strong sense of positivistic approach, which emphasizes that a law is a production of legislature. The function of judges is simply to make decisions in accordance with the text of the law. Any creativity of judges in a law making process is denied by the majority of lawyers themselves. Law is understood as an act of legislature and even the Constitution supports this notion. For the sake of illustration let us consider the meaning of a clause "process of law".

In the American Constitution the expression "due process of law " has a broad meaning, which restricts actions of the state in certain circumstances and not according to certain rules. The Constitution neither states the rules in detail, nor guides to another formal act as a reference for the behavior. Adequately, a provision in the Lithuanian Constitution states "... according to the procedure established by law". In theory, it seems to be identical in its meaning to the American one. But in practice, it plays a very different role. American "due process of law" is an open clause for judicial interpretation and usually serves as an open window for natural law to enter the judicial process. Judges who deal with cases of "due process", usually have to interpret the provision themselves and to decide the outcomes of the process in the particular case. Moral values and ideas of natural law might be refereed to in expanded interpretation of the clause.

In the Lithuanian Constitution "...procedure established by law" means, that certain procedure is required. The law, which establishes this procedure, is a particular bill of the legislature. This bill provides a detailed explanation for courts' action in a particular situation. Courts simply follow the rules without any attempt to interpretation. Therefore, to major extent, decision making rests on the legislative body. Regular courts do not refer to the Constitution directly and build their arguments on the laws which specify the Constitution. In case there is a question about Constitutional interpretation with no act of legislature on that issue at hand, the courts re-address the case to the Constitutional Court - the body which is supposed to solve the problem and provide conception for understanding of one or another clause of the Constitution.

A number of cases decided by the Constitutional Court is comparatively low. During three years of its activities, there were less than forty cases decided. The low level of activity could be explained by the same idea, that a number of Constitutional provisions simply make a guidance to acts of legislature and exclude any need to make judicial decision on constitutional issues. When there is a lack of legislative provisions, or when a law obviously contradicts the Constitution, only these cases reach the Constitutional Court from ordinary courts. (According to the Lithuanian Constitution, only Constitutional Court has been granted power to make decisions on constitutional issues)

The Constitutional Court also tends to support the idea of a strong role of the legislative body. For example, in the decision of the Court of November, 18, 1994 on the question of contradicting article 58 of the Code of Criminal Procedure to the Constitution of the Republic of Lithuania, a question of restriction of a right to have a meeting with a lawyer for indicted persons before some investigating actions in a criminal procedure is discussed. Constitutional Court makes arguments on the basis of international practice and documents of international law, where restriction of this right to some degree is tolerated in various countries. It states that the situation in the Lithuanian case is caused by the gap in legislature of Lithuania. Therefore, the Constitutional Court refuses to make a final decision in a constitutional case regarding a constitutional provision to have a lawyer in certain moment of criminal investigation, and places the decision making to the Parliament.

What kind of arguments are involved in judicial decision making?

Decisions of the Supreme Court of the United States in constitutional issues are based on 5 types of arguments:

1. Arguments from the text of Constitution

2. Arguments of historical intent

3. Arguments of theory

4. Arguments from precedent

5. Arguments of value *

Arguments form the text of Constitution are most useful to lawyers, for they contain strict provisions and cause no ambiguous interpretations, if written precisely. However the Constitution quite often provides just a broad clause, which may be interpreted in different ways. Therefore, other kinds of arguments are used in the interpretation of the Constitution . These are the arguments of value determination of which is a task of the judges.

* Fallon, Richard H. (1987): "A Constructivist Coherence Theory of Constitutional Interpretation", Harvard Law Review , vol.100.

In order to construct a similar system of arguments used by the Lithuanian Constitutional Court, I would include these arguments:

1. Arguments from the text of the Constitution

2. Arguments from the theory of law

3. Arguments based on international law and practice of other countries

4. Arguments from precedent

5. Arguments of value

6. Arguments of tradition

No doubt, arguments from the text of the Constitution are in a superior position , as text oriented judges are more likely to use these arguments. The fact that the Lithuanian Constitution is about three times larger than the American Constitution implies a possibility to rely on the textual interpretation on a higher degree. Nonetheless, all other kinds of arguments are involved in the process because new realities of the constitutional development constantly enter.

Arguments from precedent were never an issue in the judicial practice before. Courts usually used legislative sources for decisions and never for precedents. The judicial practice was used only as a methodical tool and not as an official source for courts decisions. At present there are some decisions of the Constitutional Court based on its own precedents but still it is difficult to predict what role these precedents are going to play in the future constitutional development. So far, since the establishment of the Constitutional Court there has been very few such decisions made. Nevertheless, the very fact of acceptance of the precedents in judicial practice is a step towards precedental judiciary, so significant in the common law based countries.

Arguments of historical intent in American contest are mostly understood as ideas of founding fathers of the Constitution. During long decades this kind of arguments had been playing a significant role in the development of American constitutional tradition and often used by the Supreme Court. At present, in Lithuanian case arguments of intent of designers of the Constitution do not seem to be of major importance. The current Constitution of the Republic of Lithuania is a result of compromise between several political powers. A final version of the Constitution is a combination of a few drafts provided by competing political groups in a situation of rush due to approaching parliamentary elections as well as a popular referendum for adopting the new Constitution. Therefore, intentional meaning of particular clauses can not be taken seriously because of its impreciseness in the Constitution making process. Moreover, participation of the same competing political powers in the legislative process in the Parliament since the quite recent adoption of the Constitution implies an idea, that the original constitutional intentions are still present in the acts of legislature.

Another kind of arguments which are never used in the American Supreme Court seem to be of major importance in the decisions of the Constitutional Court of Lithuania. These are the arguments based on international law and similar practice of Western countries. Presence of this kind of arguments partly supports the positivistic way of dealing with the judicial decision making. Having no written source of their own to rely on, judges find something of a positivistic character outside their national legal system. While in this way norms of intentional law, with reference to a particular act, are used most likely, sometimes, in order to justify legality of one or another act, the practice of some Western countries is applied to illustrate that the similar acts are functioning in other systems as well.

Despite the positivistic predisposition, non-positivistic tendencies could be found. Non interpretative approach, which is based not on an interpretation of the text of the Constitution, but on an extended meaning of particular clauses could be observed in the decisions of the Constitutional Court. Arguments based on certain values or traditions have been lately included in judicial decision making as well. It might be considered as a slight shift from the traditionally strong legal positivism in Lithuania.

The process of changes is slow. But it can't be considered as an obstacle to democratic development for it has nothing to do with a wrong ideology, but rather with a legal and political tradition. It cannot be radically changed and replaced by another in a short time.

Low number of cases yet decided by the Constitutional Court of the Republic of Lithuania do not allow for more precise analysis of the new tendencies in the Lithuanian constitutional tradition, since this kind of research would require more data to operate with. Nonetheless, the occurring changes could be seen. and regarded as a passage in a direction of Western constitutional tradition.

REFERENCES

The Constitution of the Republic of Lithuania: (approved, October 25, 1992).

The Constitution of the USA.

Decisions of the Constitutional Court of the Republic of Lithuania: Internet: http://www.LRS.LT.

Ely, John Hart, (1980): Democracy and Distrust : a Theory of Judicial Review. Cambridge : Harvard University Press.

Fallon, Richard H., (1987): "A Constructivist Coherence Theory of Constitutional Interpretation", Harvard Law Review , vol.100.

McCloskey, Robert G., (1960): The American Supreme Court. Chicago: University of Chicago Press.