Vėl antikonstitucinis įstatymo projektas

YET ANOTHER UNCONSTITUTIONAL BILL Two and a half years ago, a draft Law on Names and Surnames of the Republic of Lithuania was submitted to the Seimas. Once it became clear that it contradicted the Constitution of the Republic of Lithuania and the Constitutional Court’s interpretation concerning the writing of names and surnames in a passport of a citizen of the Republic of Lithuania, the Seimas did not consider the bill*. It was decided to refer the matter to the Constitutional Court once again. The Court reiterated the fundamental provision that a person’s name and surname must be written in the state language in the passport, while they may be entered in other languages on pages for additional entries. Following this Constitutional Court ruling, the Government of the Republic of Lithuania prepared, in place of the previous bill, and submitted to the Seimas a draft Law of the Republic of Lithuania on the Writing of Names and Surnames in Documents. The new bill remedied several shortcomings of its predecessor: it clearly distinguishes the writing of names and surnames in documents from their writing in other contexts; it begins its rules for writing names and surnames with the fundamental principle—that they be written using Lithuanian letters; and it does not contain many of the extraneous matters found in the previous bill. However, like its predecessor, the new bill contradicts the Constitution and the Constitutional Court’s ruling. Worse still, it was drafted after the Constitutional Court’s repeated interpretation. Thus, the bill’s drafters—and the Government, in submitting it to the Seimas—are knowingly violating the laws of Lithuania and the principles of the rule of law. To justify and provide a theoretical basis for their work, the bill’s drafters cobbled together a peculiar preamble. Such a law does not need one, or at least it should be different. The current one is superficial and wholly biased. It contains not even a hint of the Constitution, the state language, or Lithuanian personal names. Three of its four points set out theories about people from other countries and personal names in other languages, and pointedly contrast them with Lithuanian personal names. The aim is to suggest that a personal name is supposedly not a matter of language, but a “unique * The bill’s shortcomings have been noted in the press more than once: Pranas Kniūkšta. On the Draft Law on Names and Surnames. – Literatūra ir menas, 2007, July 20; Gimtoji kalba, 2007, No. 7, pp. 15–18; Pranas Kniūkšta. Will the Seimas Defend the Lithuanian Language? – Literatūra ir menas, 2009, June 19. 324 KALBOS KULTŪRA | 82 marker of an individual’s identity,” and that personal names “have no lexical meaning, and therefore the personal names of one language should not be considered part of the system of another language in which they are used.” A personal name may perhaps be regarded as a kind of personal identifier, but it also has a linguistic form. It must be acknowledged plainly and clearly that personal names are a matter not only of law but also of language. Whether a personal name has lexical meaning is not particularly important. Words are assigned to a language system not according to their lexical meanings, but according to their morphological and phonetic characteristics. The lexical or semantic meaning of a personal name does not prevent it from passing from one language into another. As justification and argument, the bill’s drafters invoke the 1938 Surnames Law. The preamble mentions no other document; it refers only to that law, and only to its provision on writing non-Lithuanian surnames in non-Lithuanian letters. But that law was not intended for this purpose. It regulated the changing and correction of Lithuanian surnames, while the provision on writing non-Lithuanian surnames was artificially added and detached from the law as a whole. It is possible that this was a response to Poland’s 1938 ultimatum and its demands that the rights of Poles in Lithuania be guaranteed. Such suspicions also arise because we hear similar demands today; the bill’s drafters do not identify them, but dutifully comply with them. But there are differences, too. The 1938 law does not say whether the non-Lithuanians mentioned are citizens of Lithuania or where their surnames may be written in non-Lithuanian letters, whereas the drafters of the new bill unceremoniously extend that principle to citizens of the Republic of Lithuania and the writing of their surnames in documents. Paragraph 5 of Article 3 of the bill states: “The name and surname of a citizen of the Republic of Lithuania who belongs to a national minority shall, on the basis of the source document, be written in non-Lithuanian Latin-based letters, provided that the alphabet of that national minority’s language is Latin-based and that an application has been submitted by the citizen of the Republic of Lithuania”. This is the provision of the bill that directly and flagrantly conflicts with the Constitution of Lithuania and the Constitutional Court’s ruling. The bill’s unconstitutional provisions are also evident in other ways. It provides for the surnames of spouses of citizens who are not of Lithuanian ethnicity to be written in non-Lithuanian letters, while anyone wishing to use Lithuanian letters must submit a separate application. It does not even mention anywhere the writing of the names and surnames of citizens who are not of Lithuanian ethnicity using Lithuanian letters. And in a thoroughly tendentious move, the provision on writing the names and surnames of citizens belonging to a national minority is buried after the provisions on the personal names of foreign citizens. The aim is to hide behind them and distance the matter as far as possible from the Lithuanian language and Lithuanian letters. Vėl antikonstitucinis įstatymo projektas 325 Here it must be said that Lithuanian citizens who are not of Lithuanian nationality cannot be equated with citizens of other countries. The personal names of citizens of the Republic of Lithuania are established and written in accordance with Lithuanian laws, including the Law on the State Language. The main principles for writing first names and surnames were laid down in the resolution of the Supreme Council of 31 January 1991, “On the Writing of First Names and Surnames in the Passport of a Citizen of the Republic of Lithuania.” The personal names of persons who are not of Lithuanian nationality are addressed in a separate clause: “The first names and surnames of persons who are not of Lithuanian nationality shall be written in Lithuanian characters in the passport of a citizen of the Republic of Lithuania being issued.” For almost twenty years, this principle has applied not only to passports but also to other documents. The Constitutional Court has confirmed that it is consistent with the Constitution. The case is different with the personal names of citizens of other countries. These are established under the laws of the relevant country and entered in accordance with that country’s language requirements. In official usage in all countries, including ours, they are valid in the form in which they have been established. Therefore, the draft provision stating that the first names and surnames of foreign citizens “recorded in the source document using non-Lithuanian Latin-based characters are transcribed letter by letter using Latin-based characters” is legally justified. This does not conflict with either the Constitution of the Republic of Lithuania or the Constitutional Court’s ruling, since that ruling concerns the writing of the first names and surnames of Lithuanian citizens in Lithuanian characters. The 1991 resolution of the Supreme Council had provided that the surnames of citizens of other states could also be written in a non-Lithuanian manner. Its third clause allowed the first names and surnames of persons who held citizenship of another state to be written as they appeared in that state’s citizen’s passport or an equivalent document. However, the clause in the current draft concerning the first names and surnames of foreigners should be revised because it conflates with citizens of foreign states stateless persons, foreigners who have acquired citizenship of the Republic of Lithuania, and the spouses and children of citizens of foreign states. These categories are not entirely alike and should not all be measured by the same yardstick. For instance, a stateless person may be a permanent resident of Lithuania or may be temporarily in Lithuania for some reason—the former may be treated like Lithuanian citizens, the latter like foreigners. A Lithuanian citizen who marries a foreigner does not thereby become a foreigner. For such citizens of the Republic of Lithuania, the general principle of writing first names and surnames in Lithuanian characters applies first and foremost. But, 326 KALBOS KULTŪRA | 82 On the other hand, by taking the surname of a citizen of another state, a spouse acquires a shared family surname, which is linked to the principles of using and writing surnames in that other state. These principles may also be applied to a citizen of the Republic of Lithuania who has taken a foreign national’s surname, particularly if the marriage was concluded and the person lives outside Lithuania. Legally, such surnames are equivalent to those of foreign nationals, and the principle of writing foreign nationals’ surnames in non-Lithuanian characters may be applied to them. Two opposing but legally justified principles conflict here, so the law may allow such surnames to be written either in Lithuanian characters or in the same characters as the spouse’s surname. Their children’s first names and surnames may likewise be written in either way. A separate provision should address such cases. But the project’s biggest flaw is its unconstitutional fifth paragraph of Article 3, which seeks to deny the principle that the first names and surnames of Lithuanian citizens belonging to national minorities are to be written in Lithuanian characters. An attempt was already made to do this in the 2007 draft, but those intentions came to nothing. The drafters of the new project are playing hide-and-seek again and, as if nothing had happened, are pushing a rejected product. A law is, of course, needed. But there is no need to dismantle what has already been established and taken root. The Supreme Council’s resolution could be taken, its principles and main provisions approved, and the existing resolution supplemented in light of new circumstances—without changing the most important principles—and the document given the form of a law. POST SCRIPTVM The main articles of the law can be formulated briefly and simply: Article A. Writing First Names and Surnames 1. The first and last names of citizens of the Republic of Lithuania, based on the source document, shall be written using Lithuanian letters in personal or other documents drawn up and issued by competent authorities, except for Article 2, paragraph 2. 2. The first names and surnames of citizens of the Republic of Lithuania who are not of Lithuanian ethnicity shall be written in documents according to their pronunciation, using Lithuanian characters, preserving Vėl antikonstitucinis įstatymo projektas 327 authentic forms of personal names. At the person’s request, the first name and surname may be written without grammatical endings or with grammatical endings. Article B. Transcription of first names and surnames 1. The first names and surnames of foreign nationals recorded in the source document using non-Lithuanian Latin-based characters are transcribed letter by letter using Latin-based characters. For technical reasons, the first name and surname may be transcribed without diacritical marks. 2. The first name and surname of a citizen of the Republic of Lithuania who has married a foreign national and taken that person’s surname are written, at the person’s choice, either using Lithuanian characters or using the same Latin-based characters as the spouse’s surname. The first names and surnames of these persons’ children are likewise written in either of two ways, using Lithuanian or other Latin-based characters. 3. A first name and surname recorded in the source document using non-Latin-based characters are transcribed using Lithuanian characters according to pronunciation. PRANAS KNIŪKŠTA Institute of the Lithuanian Language P. Vileišio g. 5, LT-10308 Vilnius 328 KALBOS KULTŪRA | 82