Whereas in South Korea, the Supreme Court (silently) acknowledged the will of the people as clearly expressed in the general election and reversed the parliamentary impeachment vote, in Lithuania it is precisely the Constitutional Court which has pre-empted the judgement of the people. The Lithuanian Court chose to go beyond even what Paksas’s parliamentary enemies sought. Like it or not, the Court made itself a central player in a political crisis by taking the initiative to enact a far-reaching constitutional law not expressed in any part of the written text. Leaving aside a likely appeal to the ECHR in Strasbourg as the Court’s ruling cannot now be directly challenged in Lithuania, it may not be the final word on the matter.
Various possibilities remain open to the Paksas camp for challenging the lifetime ban. First of all, a constitutional change might be pushed through by referendum. Or, the composition of the Court might alter as new judges replace the existing ones when their terms expire. Parliamentary elections due in the autumn might produce a majority which would not accept judges known to agree with the current Court’s anti-Paksas stance. As in America, nominations to the Constitutional Court could become bitterly contested.
Depending on the election results, especially those in the parliamentary elections in the autumn, Mr. Paksas looks set to remain a power in the land. If his supporters were to gain a parliamentary majority, or even a share in power later this year, the question of either changing the Constitution by referendum or of slowly reforming the composition of the Constitutional Court by parliament’s refusal to accept the nomination of more diehard anti-Paksas judges is a possibility. Naturally, the existing anti-Paksas majority in the Lithuanian establishment will fight against any such change.
Like it or not, the Lithuanian courts, especially the highest court, have become politicised as a result of the Constitutional Court’s lifetime ban on Rolandas Paksas. So long as he wishes to play a political role, that ban and the Court which enacted it will be part of the hurly-burly of politics.
Europe to the Rescue?
Has Paksas a chance of seeking redress from the European Court of Human Rights? It was striking that Raimondas Šukys who had welcomed the Constitutional Court’s initiative in inventing the ban on oath-breakers which the drafters of the Constitution itself had failed to spell out in their text, became rather narrowly legalistic when the question of an appeal by Paksas to ECHR was raised.
Šukys argued that the ECHR’s jurisdiction did not extend to such issues. Whereas the absence of a clear text in the Lithuanian Constitution had left the field wide open to interpretation by the Court in Vilnius, in Šukys’s view Article 3, protocol 1 of the ECHR’s charter only guarantees the right of appeal to the court in questions relating to the formation of legislative bodies. Since the Lithuanian president was not a legislator, ergo, the ECHR would have no competence in deciding cases from Lithuania about whether anyone’s human rights had been infringed by a ban on a person’s participation as a candidate. This interpretation of the ECHR’s mandate would leave it open to a hi-jacked Constitutional Court to start laying down further restrictions on presidential candidates without any recourse to Strasbourg. Indeed, it would leave only the streets as a means of challenging a Constitutional Court which had usurped both legislative and elective functions. In short, denying the jurisdiction of the ECHR could be dangerously provocative.
The ECHR rarely contradicts the received wisdom of the Euro-Atlantic elite and might be reluctant to quash the Lithuanian Court’s ruling, though how it would justify retrospective legislation by the Court would make for interesting reading. Like it or not Lithuania is not an island but a part of the common European legal space. Of course, there are other areas of the ECHR which can be explored by Paksas’s supporters in order to seek redress at Strasbourg.
Lithuania as a Model for the EU?
Already on 23rd February, 2004, the Chairman of the Constitutional Court, Egidijus Kuris, insisted that the impeachment of Rolandas Paksas was a precedent for the EU. He announced that “Actually, Lithuania is now working over a chapter of the history of European constitutional law.” Raimondas Šukys concurred with this. In his interview with BHHRG on 28th May 2004 he repeated the argument that the Constitutional Court’s ruling barring Paksas as well as the impeachment process was a precedent for European jurisprudence.
In other words, little Lithuania is setting the tone for its bigger brothers in Europe. There are many political leaders there who might reflect on the implications for them of the Lithuanian Constitutional Court’s wide-ranging and innovative interpretation of its powers. Silvio Berlusconi is an obvious target for this European model, but Jacques Chirac could also be threatened. At present, the President of the French Republic can only be removed from office by death or a treason charge, but that could alter.
It is easy for outsiders to dismiss Lithuania’s political crisis as a local difficulty. However, as a member of both the EU and NATO, the country’s sordid political travails affect hundreds of millions of people outside its borders. Who rules in Vilnius is a factor in determining how Brussels, Luxembourg and Strasbourg will operate. In Europe, as Lenin would have remarked, everything is connected to everything else. Turning a blind eye to Lithuania’s growing legitimacy gap dividing its politicians from the people will not stop it becoming a problem for Europe.
 For European Convention on Human Rights, see, http://www.echr.coe.int/,
 See http://www.infolex.lt/portal/ml/start.asp?act=news&Tema=1&str=8876.