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News 28 August 2021, at 09:45

Dainius ŽalimasThe essential purpose of any independence declaration is to provide an eternal basis for the constitutional order of the respective state.

Marime Font

 Let me first congratulate all of you with the 30th anniversary of the independence of the Republic of Moldova. On this occasion one can recall that even before declaring its own independence, Moldova became the first country to recognise the restored independence of the Republic of Lithuania on 31 May 1990.

 Therefore it is not a surprise that, although being at a certain geographical distance, our countries feel a lot of in common, in particular a similar experience of a foreign occupation and oppression in XX century. Naturally, our path to liberation in 1990s had to be also similar. Thus, our attitude to the declarations of independence seems to be even identical, too.

Indeed, in developing the constitutitional doctrine regarding the fundamental constitutional acts of the State of Lithuania (independence declarations – in the XX century we had even three of them, the most important of which is the Act of Independence of 16 February 1918), the Lithuanian Constitutional Court has been inspired first and foremost by the jurisprudence of the Constitutional Court of Moldova (its doctrine on the block of constitutionality). In particular, its judgment of 5 December 2013 regarding the Romanian state language has to be distinguished, whereby the Declaration of Independence has been recognised as a primary source of constitutional law, which contains eternal constitutional clauses as essential elements of the national constitutional identity and which therefore has precedence even over the text of the Constitution.



Act of Independence of 16 February 1918), the Lithuanian Constitutional Court has been inspired first and foremost by the jurisprudence of the Constitutional Court of Moldova (its doctrine on the block of constitutionality). In particular, its judgment of 5 December 2013 regarding the Romanian state language has to be distinguished, whereby the Declaration of Independence has been recognised as a primary source of constitutional law, which contains eternal constitutional clauses as essential elements of the national constitutional identity and which therefore has precedence even over the text of the Constitution.
Similarly, in its rulings of 11 July 2014 and 30 July 2020 the Constitutional Court of Lithuania founded the eternal constitutional clauses arising out of the Act of Independence of 16 February 1918, which proclaimed Lithuania to be an independent and democratic State. The purpose of other two independence declarations – the Act on the Restoration of the Independent State of Lithuania of 11 March 1990 and the Declaration of 16 February 1949 of the Lithuanian Freedom Fight Movement (the Resistance to the Soviet occupation) – was to implement the fundamental principles of the Act of Independence of 1918. Therefore the declarations of 1990 and 1949 are regarded as derivative from the Act of Independence of 1918.


In particular, the ruling of 30 July 2020 has to be distinguished, whereby the Constitutional Court of Lithuania ruled on the supra-constitutional force of all three independence declarations, as they are pre-constitutional acts of a fundamental nature adopted by a (re)constituent power – the special representative supreme institutions with a mandate from the People to (re)establish the State of Lithuania. Being primary fundamental constitutional acts (the “birth certificate“ of a State), they cannot be amended, recalled or replaced by any power, including a popular referendum or a national parliament established and elected in accordance with the Constitution. Therefore, however paradoxically it may sound, the Constitution (though being a supreme law within a State) has to comply with the fundamental unchangeable principles of independence declarations having the status of eternal constitutional clauses, such as the independence of a State, democracy and inalienable (inherent) nature of human rights (as noted by an exile Lithuanian lawyer Jonas Varnas already in 1978, the respect for dignity of any person is regarded as an inalienable element of the democratic constitutional order). As acknowledged by the Constitutional Court of Lithuania, the current Constitution arises out of the independence declarations. Naturally, it is the Constitution that has to be interpreted, whenever necessary, in the light of the relevant provisions of the independence declarations.

This official constitutional doctrine has also its roots in the writings of Lithuanian scholars of inter-war independence period. The most authoritative of them was prof.

Konstantinas Račkauskas who in exile from the Soviet occupation in 1967 published a book „On the Issues of the Lithuanian Constitutional Law“. There he emphasised that the Act of Independence of 1918 is of supra-constitutional nature as it expresses the primary constituent power of the Lithuanian people, which is higher than the secondary constituent power with a mandate to adopt the Constitution.

Therefore, no Constitution can be contrary to the Independence Act, i.e. the former has to comply with the latter. Similarly, another famous Lithuanian lawyer Mykolas Romeris wrote before the WWII about the existence of supra-constitutional principles (such as justice, equality and freedom), which all constitutions should comply with.

The official constitutional doctrine regarding the significance of the declarations of independence reflects the perception of the Constitution, which is also familiar from the jurisprudence of the Moldovan Constitutional Court, in particular its judgment of 2 May 2017: the Constitution is not a suicide pact (phrase assigned to the US President Lincoln), therefore it cannot be interpreted against the fundamental constitutional values, such as national independence, the territorial integrity or the security of the State. Similarly, the Lithuanian Constitutional Court declared that the purpose of the Constitution, as supreme law, is to consolidate and protect the highest constitutional values proclaimed by the independence declarations. That is why the Constitution cannot be interpreted as allowing to create preconditions for the destruction of an independent democratic State of Lithuania as established by the Act of Independence of 16 February 1918.

Undoubtedly, the independence declarations are also regarded as an expression of national constitutional identity – constitutional traditions to be developed by the Constitution. In its ruling of 30 July 2020, the Lithuanian Constitutional Court distinguished the following main elements of the national constitutional identity (similar elements can also be seen in the jurisprudence of the Moldovan Constitutional Court): a democratic parliamentary republic, respect for human rights, the social orientation of the State, Western (Euro-Atlantic) geopolitical orientation of the State, prohibition of the totalitarian (Nazi and Communist) regimes. Most of these elements have been found in the Declaration of 16 February 1949 of the Lithuanian Freedom Fight Movement. It must be emphasised that the constitutional recognition of the latter Declaration marks the cleaning of a national constitutional framework from the legacy imposed by the Soviet occupation. All the above mentioned elements have their expression in the current Constitution and have been accordingly revealed in the case law of the Constitutional Court.

Finally, perhaps it is not a common constitutional trend to focus on the significance of their independence declarations vis a vis national constitutions. However, it is common for such countries as Moldova or Lithuania, which had been subject to foreign occupation and oppression several times. Therefore, it is not accidental that in our countries the Constitution is distinguished as a legal safeguard of independence and democracy as well as of other fundamental constitutional values proclaimed by the independence declarations. The essential purpose of any independence declaration is to provide an eternal basis for the constitutional order of the respective state. There is no power entitled to destroy or challenge that basis. That is why we can speak about the viability and continuity of our states despite of various threats, challenges and changes.

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