Parliament May Amend Electoral System Earlier than a Full Parliamentary Term, However New Electoral System May Not Apply to Snap Parliamentary Elections

On 26 April 2019, the Constitutional Court of Moldova delivered an interpretative judgment on certain articles of the Constitution, following an application lodged by a group of MPs.

The applicants asked the Constitutional Court to explain the following issues:

1) Whether the Parliament may amend the electoral system earlier than a full parliamentary term?

2) Whether snap parliamentary elections may be conducted based on a new electoral system than that applied in ordinary parliamentary elections? 

The Court’s assessment

 The Parliament enjoys a wide margin of discretion in regulating the electoral system, as well as in organising and conducting elections. However, the Court noted that the margin of discretion conferred by the Constitution to the organic legislator in regulating the electoral system, as well as in organising and conducting elections may be restricted in the event that the new legislative measures are not subject to appropriate parliamentary debate.

The Court held that Articles 61 and 72 of the Constitution, as regards the issues raised in this application, were not designed as an electoral code that would determine all aspects of the electoral process. These articles shall be interpreted by the Constitutional Court, in accordance with Article 4 para. (1) of the Constitution, in light of international treaties on human rights, as these constitutional provisions put in the spotlight the fundamental rights of a person: the right to vote and the right to stand for elections. In addition to the international treaties in the field and the case-law building on them, the Court also took into account the recommendations of international bodies which usually highlight the existence of a consensus on a specific human rights issue.

Thus, the Court found that the Code of Good Practice in Electoral Matters, adopted by the Venice Commission, provides for several rules to be observed when amending electoral laws. One of them is that the elements of electoral laws that are most exposed, particularly the electoral system itself, the membership of electoral commissions, constituencies or rules on drawing constituency boundaries, shall not be open for amendment less than one year before an election, or should be enshrined in the Constitution or in a text higher in status than ordinary laws.

As regards the time-limits to be observed when amending key elements of electoral laws, the Venice Commission adopted the Interpretative Declaration on the Stability of the Electoral Law, at its 65^th plenary session on 15-17 December 2005. The Declaration provides that in general, any amendment of the electoral legislation should be operated well in advance in order to be successfully applied in the electoral process.

Following an overview of the main acts of international organisations relevant to the issues subject to interpretation, the Court found that they reveal at least the existence of a European consensus which may be a response to the questions raised by the authors of the application. Thus, by interpreting Articles 61 and 72 of the Constitution in light of the two questions raised by the applicants, the Court holds that the Parliament may amend the electoral system earlier than a full parliamentary term, but that this system shall not be applied to snap parliamentary elections. It is the snap elections which require clarity and predictability, particularly for citizens entitled to vote. Amending and implementing the electoral system ahead of early parliamentary elections poses risks of interference with the unhindered exercise of electoral rights, implicitly with the legitimate expectation of citizens to vote and legitimate expectation of candidates for parliamentary elections to nominate their candidatures in a certain way and under certain conditions.

A new electoral system could be applied for ordinary parliamentary elections, if it is adopted at least one year ahead of the elections.

Finally, the Court stressed that the principle of stability of electoral legislation may show a dynamic balance depending on the concrete circumstances of a political situation and that the frequent or late amendment of the rules governing the electoral process may prove detrimental to the voters, candidates and parties, with the risk of the right to vote and to stand for elections to be violated. 

The Court’s conclusions 

Considering the foregoing, the Constitutional Court decided the following:

- The Parliament may amend the electoral system earlier than a full parliamentary term. The new system shall not be applied for snap parliamentary elections, but only for ordinary parliamentary elections, given that the amendment is operated a year ahead of elections.

- The frequent or late amendment of the rule governing the electoral process may prove detrimental to the voters, candidates and parties, and may generate the risk of the right to vote and stand for elections being violated.

This judgment is final, it cannot be appealed, entering into force upon adoption and shall be published in the Official Journal of the Republic of Moldova.

This is a courtesy translation of the original press-release in Romanian language.