The Doctrine of Supra-Constitutionality and Lithuanian Constitutional Identity

Abstract

The aim of this article is to analyse the doctrine of supra-constitutionality, as developed by the Constitutional Court of the Republic of Lithuania, and its impact on the concept of the Lithuanian constitutional identity. The article deals with origins of the doctrine of supra-constitutionality, its content and consequences for the paradigm of constitutional law. This doctrine follows from the fundamental constitutional acts of the State of Lithuania, first and foremost, from the Act of Independence of 16 February 1918. From the standpoint of the current Constitution of 1992, these acts are considered to be pre-constitutional acts of constitutive (re-constitutive) nature, adopted by the supreme representative institutions of the People, which expressed the will to establish (re-establish) the independent democratic State of Lithuania. Therefore, the fundamental constitutional acts of the State of Lithuania are particular primary sources of the Lithuanian constitutional law. Their core provisions establish the unamendable fundamental constitutional principles – independence of the State, democracy, and the inherent nature of human rights. These principles have supra-constitutional force and cannot be denied by any constitution of Lithuania. On the contrary, it is the Constitution that derives from the fundamental constitutional acts and must unconditionally protect the irrevocable constitutional values. Thus, the element of supra-constitutionality present in the fundamental constitutional acts is not contrary to the concept of the Constitution, as supreme law. It is rather the cornerstone of the modern Lithuanian constitutionalism, which together with other constitutional traditions expressed by those acts allows us to define the constitutional identity of Lithuania.