Finding of unconstitutionality regarding the broadening of competences of the ad interim PM and of the outgoing Government

(Complaint No. 16a/2013)

On 18 May 2013 the Constitutional Court of Moldova ruled on the constitutionality of certain provisions regarding the competences of the outgoing Government and of the ad interim Prime Minister (Complaint No. 16a/2013). The judgement has been sent for publishing in the Official Journal.

Circumstances of the case

At the origin of the case was the complaint lodged with the Constitutional Court on 14 May 2013 by the MPs Messr Mihai Ghimpu and Valeriu Munteanu on constitutionality review of the Laws No. 107 and 110 of 3 May 2013 by which there was modified the Law on the Government, in the part related to the competences of the outgoing Government and of the ad interim Prime Minister.

Within the public plenary meeting, on the ground of the Article 3 para. (3)  of the Code of Constitutional Jurisdiction, the authors of the complaint have supplemented the reasoning and the matter of the complaint, asking the Court to apply the constitutionality review on the Decrees of the President of the Republic of Moldova No. 634-VII of 16 May 2013 on removing Mr Mihail Moldovanu from the office of Vice-Prime Minister and No. 635-VII of 16 May 2013 on removing Mr Anatolie Șalaru from the office of Minister of Transportation and Road Infrastructure, as well as the constitutionality review of Government Decision No. 364 of 16 May 2013 on the dismissal of  Mr Ion Cebanu.

The authors of the complaint claimed, particularly, that by passing on 3 May 2013 the challenged laws, the Parliament assimilated the ad interim Prime Minister to the titular Prime Minister and that the outgoing Government was assimilated to the plenipotentiary Government, contrary to the provisions of the Articles 98 and 103 of the Constitution.

Given the fact that the provisions on the respective change (of the law), following their entering into force, become a sole corpus with the basic Law they are changing, the Court decided to review the provisions of the Law on the Government (Articles 7¹ and 27¹), within the version of the challenged Laws of modification No. 107 and No. 110 of 3 May 2013.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Tudor PANȚÎRU,

Mr Victor POPA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties, the Court noted that the statute of the ad interim Prime Minister is different from the one of the titular Prime Minister. The Court found that the ad interim Prime Minister has a provisional statute, by instituting the interim there being sought to ensure the continuity in exercising the competences of a Prime Minister, which, due to their particular nature, do not permit intermittences. However, in exercising the competences of Prime Minister, he has not been granted the mandate of the Parliament and does not follow the procedure of appointment in office inherent to the titular Prime Minister. Therefore, the constitutional provisions laid down exclude equating the mandate of Prime Minister with the interim of the office, by which there is ensured the continuity of exercising the competences of Prime Minister, but there is not set the beginning of a full mandate as Prime Minister.

The Court noted that the essence of the contested changes resides in excluding a number of limitations provided in the previous version of the same article on the reshuffle of ministers and of heads of central administrative authorities.

In the same context, the Court found that the law makes use of the phrase according to which the ad interim Prime Minister "has the same competences" as the titular Prime Minister, with two formal exceptions, which do not induce in a practical way any difference:

1)    an exception - on the formation and proposal of Government's composition - is eviscerated, as it is not actually an exception from the competences of Prime Minister, given it is a priori not him, but the "candidate" for the office of Prime Minister (Art. 98 para. (2) of the Constitution) who proposes to the Parliament the composition of the Government. The Prime Minister is part of the already formed Government, as he only obtains the capacity of "Prime Minister "following the investiture and the oath-taking.

2)    The other exception - on submitting the resignation of the Government and of the Prime Minister - does not represent a difference of the substance of the mandate, as it only refers to its termination, not including its exercise.

The Court noted that, given the fact that both the President of the country and the Government are the emanation of the Parliament, the President cannot undertake Government reshuffle upon the proposal of a person who was not appointed Prime Minister by the vote of confidence of the Parliament and which, therefore, did not form the list of the Government he seeks to modify.

Furthermore, the Court found that the Supreme Law provides for the prolongation of the Government's mandate only in the part which referrers to "the administration of public affairs". Therefore, in case of an outgoing Government, a fortiori, the mandate of the ad interim Prime Minister is included in the limited mandate of the outgoing Government to which he belongs to.

On the ground of these findings, the ad interim Prime Minister cannot be granted identical competences with those of a Prime Minister regarding governmental reshuffle.

The Court noted that, unlike the titular Prime Minister, who holds responsibility in front of the Parliament for the entire governmental team that he actually formed, the ad interim Prime Minister of a dismissed Government does not hold this responsibility.

The Court found that uncertainties could occur when the ad interim Prime Minister, who does not have the vote of confidence of the Parliament, would revoke one by one the entire Government. The uncertainty can assume proportions that are more obvious in case of a prolonged interim. Therefore, in fact, the contested provision permits the ad interim Prime Minister and the President of the country, who are the emanation of the Parliament, to change the entire composition of the Government, obviating the Parliament and any form of parliamentarism.

The Court held that, assigning the ad interim Prime Minister, appointed from the members of the dismissed Government, with identical competences as for the titular Prime Minister, excepting him from any parliamentary control, is contrary to the spirit of the Constitution and represents a danger for the parliamentary democracy. Within this context, the Court found that within a rule of law state it is inadmissible to pass provisions that could admit the permanency of the interim governance.

For the mentioned reasons, the Court declared entirely unconstitutional the provisions regarding the competences of the ad interim Prime Minister.

In part pertaining to the competences of the outgoing Government, the Court noted that an outgoing Government continues to administrate the public affairs awaiting a new plenipotentiary Government. This means that a dismissed Government exerts only a part of the limited power, it "administrates", but it does not "govern".

The administration of the public affairs refers to the daily, routine decisions that are necessary to the uninterrupted functioning of the public service.

The Government that administrates public affairs cannot assume obligations regarding significant political initiatives a fortiori in cases that have created difficulties before its dismissal. In particular, decisions that could subsequently lengthy engage the political line of the next Government are excluded. In this train of ideas and in line with the practice of other states in similar situations, an outgoing Government can prepare the bill of the annual budget, but it should not be submitted to the Parliament for enactment by a plenipotentiary Government, that will have the responsibility to implement it.

The administration of public affairs is not only a competence of the dismissed Government, which can be used in a free way for assuring the continuity of the public services; it is, in the same time, a limit that is imposed and its violation can lead to a jurisdictional sanction.

A reasoning of the limited action of the dismissed Government is, among others, the fact that an outgoing Government is not susceptible of sanctions from the side of the Parliament. It is obvious that a dismissed Government cannot repeatedly be brought down. Accordingly, granting a dismissed Government such significant competences would represent a danger for parliamentarism.

For the same reasons, the room of maneuver of the outgoing Government is limited regarding the appointment of public servants, regarding reforms and other important actions that are remaining in suspense, since the Government was eviscerated of its full mandate. In this context, the interim period has to be limited in time at its maximum.

In this context, the Court held that assigning certain competences on submitting and signing off legislative initiatives, submitting the budget (not including its preparation), staff reshuffle of an outgoing Government are unconstitutional. Other competences on performing foreign affairs and the general governance of the state administration were found to be constitutional.

Consequently, the Court noted that the reshuffle can only occur in the case of an objective impossibility of individuals to exert their mandate, so that the status quo of the state administration could be upheld.

For the mentioned reasons, the Court declared unconstitutional the Decrees of the President of Moldova No. 634-VII of 16 May 2013 on removing Mr Mihail Moldovanu from the office of Vice-Prime Minister, and 635-VII of 16 May 2013 on removing Mr  Anatolie Şalaru from the office of Minister of Transportation and Road Infrastructure, and the Government Decision No. 364 of 16 May 2013 on the dismissal of Mr Ion Cebanu, so that the dismissed individuals shall continue to exercise their duties.

Taking into consideration the broadening of the given competences, same as the broadening of the dismissed Government, in the situation of lack of imperative provision regarding time limits, the Court found the risk of making a governmental interim permanent, excluding the parliamentary control, thus being places outside the constitutional field.

The Court held that the provisions and the spirit of the Constitution aim at ensuring the perpetuation of the power exertion by state institutions, established under the provisions of the Constitution, and provisional situations, similar to the current one, intended to avoid the vacuum of power and to assure the organization of the mechanisms that render functional the state's plenipotentiary institutions, have to be removed as soon as possible.

In this context, the Court noted that, regardless of the circumstances that determined the dismissal of the Government, the Parliament and the President of the Republic of Moldova have the imperative obligation to obey the Constitution and, in order to ensure the continuity of governmental power, to carry out the formation of a new plenipotentiary Government, under the provisions of the Article 98 para. (1) - (4) of the Constitution.

Judgment of the Court

Starting with the reasoning invoked above, the Constitutional Court has found partly constitutional the Article 7¹ (competences of the outgoing Government) of the Law on the Government, in its version of the Law No. 107 of 3 May 2013, excepting the provisions that have been declared unconstitutional. Also, the Court declared unconstitutional the Article 27¹ (the competences of the ad interim Prime Minister) of the same Law, in its version of the Law No. 110 of 3 May 2013. At the same time, the Court declared unconstitutional the Decrees No. 634-VII of 16 May 2013 and No. 635-VII of 16 May 2013 and the Government Decision No. 364 of 16 May 2013. The Judgment of the Constitutional Court is final, cannot be subject of any appeal, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.