Įstatymo viršenybės principo užtikrinimas administracinėje teisėkūroje specialiosios kompetencijos būtinybės atvejais

Abstract

This article seeks to analyse the significance of the necessity of relying on special knowledge and competence in the legislation, when assessing the legality of granting legislative powers to the Government of the Republic of Lithuania and public administration institutions and ensuring the supremacy of law. For this purpose, the jurisprudence of the Lithuanian Constitutional Court and administrative courts on the possibility to make legal regulations specifying the provisions of law, when the special knowledge and professional competence of administrative institutions is objectively needed in this law-making, is examined and evaluated both in the pre-pandemic and in the COVID-19 pandemic management contexts. The conclusion is drawn that – even in the management of the COVID-19 pandemic, which requires special knowledge and competence – the administrative discretion of law-making is constitutionally legitimized but strictly limited by the supremacy of law, which dictates that the essential aspects of regulation of restrictive measures and human rights limitations should, ex ante, be prescribed by laws made in parliament, and thus should not be enlarged. The existing shortcomings in ensuring the supremacy of law – namely, the regulation of restrictive measures imposing human rights limitations by administrative acts of government and administrative institutions, which are legally based on only common provisions of law – have not been remedied so far. Therefore, the existing provisions of law have to be improved and the control of the supremacy of law has to be ensured.