Unison in Constitutional Interpretation: Doctrinal Developments by the Lithuanian and Moldovan Constitutional Courts (on the form of governance)

Toma Birmontiene

Abstract

This article is devoted to the analysis of some decisions of the Constitutional Courts of Lithuania and of the Republic of Moldova, which, according to the author of this article, are indicative of a “constitutional unison”, as the courts, in dealing with similar issues, delivered comparable judgments at times knowing that similar decisions have been rendered by the other court and, at times, possibly, without being fully aware of the existence of similar rationales by the other court, since certain of the aforementioned decisions are separated by more than a decade. The reasons determining this unison, its consistency as well as other issues represent the object of the present research, which, due to its limited scope, can be considered a lead-in to a broader analysis of these matters.

Reasons determining the similarity of some decisions in constitutional jurisprudences

At the end of the 20th century and the beginning of the 21st century, after regaining their statehood or restoring the democratic setup of the state and its consolidation in their newly adopted constitutions, Eastern and Central European states witnessed the spread of constitutional review, and therefore cooperation between constitutional justice institutions became indispensable. Starting their activity as novices and lacking appropriate experience, newly established constitutional courts studied the case law of the already established constitutional control institutions, looked at and learned from the activity and decisions of each other, especially due to the fact that some issues related to the development of statehood were common; in dealing with these issues, the experience of other constitutional courts served as a particularly valuable additional source of constitutional law. One of the earliest judgments of the Constitutional Court of Hungary concerning the constitutionality of the death penalty, irrespective of the fact that it drew certain criticism due to its argumentation, became a model for other constitutional courts, such as the Lithuanian Constitutional Court or South African Constitutional Court, in rendering their decisions on the non-compliance of the death penalty with constitutional provisions.

Up to now cooperation among constitutional courts has gained important institutional dimensions. In the realm of international cooperation involving various constitutional courts, a significant role is played by the Venice Commission (European Commission for Democracy through Law) which promotes cooperation among constitutional courts and similar institutions. Such overwhelming international organisations as the World Conference on Constitutional Justice, the European Conference of European Constitutional Courts, the Association of Constitutional Justice of the Baltic and Black Sea Regions and other organisations were formed which are devoted to the examination  of the activity of constitutional courts and of the decisions adopted thereby.

If we leaf the pages of the constitutions of democratic states, we will find a great deal of commonness; this is determined by the essence of democratic states, founded on respect for human rights, as consolidated in their respective provisions, and by the constitutional principles of establishment, separation and balancing of the branches of state power. The principles enshrined in constitutions with regard to the establishment of constitutional control institutions, their competences and functioning also have plenty in common. Since constitutional law provides the rules to formulate the key legal principles that are universally understood and recognised in democratic states, such as rule of law, separation of state powers, independence of courts and other principles, their interpretation in constitutional jurisprudences unavoidably entails doctrinal similarity, or even uniformity. In scholarly constitutional doctrine, similarity in judicial decisions or in constitutional doctrines is identified as legal borrowing, constitutional implanting, etc. Despite the existing differences in their denomination, at the core of this phenomenon lies the aim to make use of the case law formulated by another court in cases requiring the resolving of complicated constitutional review issues. The area of constitutional rights features even greater commonness  resulting from the law of the European Convention on Human Rights (hereinafter referred to as the Convention law) and the activity of and precedents formulated by the European Court of Human Rights (hereinafter referred to as the ECtHR). The globalisation of law, unification of different fields of law, influence of international treaties and EU law, including the activity of the ECtHR, determine the courts, when faced with similar constitutional review matters, to deliver the corresponding decisions. This is evident not only in relation to the ordinary law. Precedents formulated by the ECtHR bear particular significance; it is not a rare occurrence that they determine a situation where the decisions of constitutional courts are based on the principles elaborated by the ECtHR and, thus, inevitably lead to the proximity or similarity of jurisprudences. However, the doctrine of the margin of appreciation makes it possible for the individuality of national constitutional law to find its expression even in such decisions.

Constitutional courts deal not only with purely legal but also with legal-political issues. The constitutional setup of states does not avoid certain specificity that is characteristic to particular states or small groups or states. Thus, for instance, any typology of forms of government in the states inevitably contains exceptions that are typical to a particular state or several particular states. Nevertheless, even in this area, decisions adopted by courts demonstrate a certain degree of similarity. What are the reasons behind this? Is this phenomenon determined by an analogous legal or, at times, political situation, or by the decision of the courts to follow the jurisprudence of another constitutional jurisdiction instance, thereby creating the preconditions for the development of international constitutional legal precedents. The question is  whether constitutional courts, when being aware of the existing precedents, should follow these precedents and leave themselves a broad margin of appreciation, or whether, to the contrary, constitutional jurisprudence allows no such precedents, since the constitution and constitution law form the core of national law and define the foundations of state sovereignty; therefore, the constitutional control institution must exclusively draw on the explicit and implicit principles consolidated in the constitution and invoke all other legal sources, including international, solely as a source of inspiration or a supplementary source substantiating the specific line of reasoning taken by the court. However, such a conservative approach, first and foremost, can be repudiated in view of the above-mentioned influence of the Convention law on constitutional jurisprudences; in addition, this approach does not square with the fact that the area of constitutional rights in the states founded on the principles of the rule of law and respect for human rights has seen the formation of common uniform criteria for human rights protection and, especially, the protection of the scope of their implementation; ultimately, the principles inspired by the Convention law, which overlap with the criteria entrenched in the constitutions, are understood as universal and uniform, and precedents developed by the ECtHR are regarded as sources of national constitutional law.

The jurisprudential cooperation of constitutional courts assumes various forms. It is rather common that courts themselves indicate that, in deciding one or another issue, they drew on the specific decision or precedent worked out by another court. But, at times, a nearly analogous decision is reached without actual awareness of the existing corresponding jurisprudence of another court, in particular, when such decisions are separated by a long period of time – more than a decade. This type of unison in the jurisprudence of constitutional courts finds its manifestation in some decisions handed down by the Lithuanian and Moldovan Constitutional Courts.

Particularities related to forms of state government. The constitutional powers of the President of the state in the formation of the Government

The ruling of the Constitutional Court of Lithuania of 10 January 1998 and the judgment of the Constitutional Court of the Republic of Moldova of 29 December 2015, which can be viewed as examples of constitutional unison, were adopted with a difference in time of more than a decade; however, they share considerable proximity with regard to the questions they dealt with while answering which form of government of the state is underpinned by the constitutional provisions and what constitutional powers are conferred on the President of the state in forming the Government and nominating a candidate for the office of Prime Minister. Although the powers of the President in forming the Government and deciding on a candidate for the office of Prime Minister to be approved by the Parliament in democratic states are generally regulated under specific constitutional provisions, these powers are often determined in parallel by certain constitutional conventions, and this is particularly the case in common law systems. Such  constitutional conventions are very important in establishing the balance between state powers  and they are serving in avoiding constitutional conflicts. Thus, for instance, French constitutional doctrine dictates certain rules in this respect. However, in the absence of such conventions, or in the event of disagreements between the politicians, interpretation of constitutional provisions by the constitutional control institution becomes unavoidable. Usually, this situation occurs where the alteration of constitutional provisions is complicated and the solution of the matter is placed before the constitutional court.

The capability of the constitution to provide for all possible circumstances or to envisage all possible twists and turns in the interrelationship of state powers is disputable. The constitution is an act of constituent power, grounded on the experience of the past but designated to influence, in an effective way, the future of the state. Thus, it is doubtful whether the constitution is capable to envisage all vicissitudes in relations between the branches of state power. In cases of disagreements between state authority institutions, a reasonable question arises whether an amendment to the constitution is necessary in all these cases, or whether the same effect can be achieved by the constitutional control institution by means of interpreting the provisions of the constitution. 

In certain cases, the interpretation of the provisions of the constitution in the acts of the constitutional court not only makes it possible to avoid the arising conflicts, it also gives guidelines for further cooperation between state authority institutions. Such successful cases can be considered to include the ruling of the Constitutional Court of Lithuania of 10 January 1998: it formulated the doctrine upon which the relations of the executive power (the President and the Government) have been based since then, and provided the answer to the question as to the form of government of the state, which is implicitly consolidated in the provisions of the Constitution.  

Conflicts between presidents and prime ministers over appointment related issues are not rear in the countries that adopted new constitutions and constructed principles of governess based on separation of powers. In Lithuania, following the election of the President, the conflict between the Prime Minister and the President concerning the powers of the President (and the Parliament) in the appointment and release of the Prime Minister (and the Government) from office resulted in constitutional dispute and, consequently, led to the adoption of the ruling of the Constitutional Court of 10 January 1998. Upon interpreting the provisions of the Constitution, the Constitutional Court held that the form of government in Lithuania is a parliamentary republic with certain elements characteristic of a semi-presidential republic. In this ruling, the Constitutional Court clarified that, based on the competence of state institutions as established by the Constitution, the model of government of the State of Lithuania should be categorised as the form of parliamentary republic. At the same time, the Constitutional Court noted that the form of government of the State of Lithuania also has certain characteristics of the so-called mixed (semi-presidential) form of government. This is reflected in the powers of the Parliament (Seimas), the powers of the Head of State – the President of the Republic, and the powers of the Government, as well as in the legal arrangement of their reciprocal interaction. The President is elected in direct elections. The Lithuanian constitutional system consolidates the principle of the responsibility of the Government to the Seimas, which determines the manner of the formation of the Government; the constitutional framework of the branches of state power entails that only the Government that has the confidence of the Seimas may accomplish its powers based on the principles of parliamentary democracy, which are consolidated in the Constitution.

In the above-mentioned ruling, the Constitutional Court interpreted the constitutional competences of the President in relation to the appointment of the Prime Minister (and the Government) to the effect that the President of the Republic cannot freely choose candidates for the office of Prime Minister or ministers, since the appointment of these officials is in all cases dependent on whether the Seimas (Parliament) has confidence in or distrust of them. The Constitutional Court also stressed that the fact that the President of the Republic, as part of executive power, has some political possibilities of influencing the formation of the structure of the Government should not be ignored, either. It should be mentioned that the argumentation in the ruling contains, among others, references to French constitutional case law.

The Constitutional Court of the Republic of Moldova, in its judgment of 29 December 2015, faced analogous issues concerning the form of government of the state, implied by constitutional provisions, and the constitutional powers granted by these provisions to the President of the state in forming the Government and in cases of choosing a candidate for the office of Prime Minister for a new Government. Regardless of a decade-long period separating these decisions, their lines of argumentation share a great deal of similarity; although the judgment of the Moldovan Constitutional Court contains no direct reference to the ruling of the Lithuanian Constitutional Court of 10 January 1998, both these decisions can be regarded as illustrating unison in constitutional doctrines.

In the judgment at issue, the Constitutional Court of Moldova widely analysed the constitutional grounds for the constitutional obligation of the President of the Republic of Moldova in designating a candidate for the office of Prime Minister. The Constitutional Court examined the constitutional arrangements of France, the U.S.A., Germany, Italy, the Czech Republic and other countries. The Constitutional Court emphasised that, in no parliamentary republic, the President elected by the parliamentary majority is entitled to dissolve the Parliament for the reason that the absolute majority of members of the Parliament did not accept his/her candidate for the office of Prime Minister.

The Constitutional Court of the Republic of Moldova held that the relevant constitutional provisions (Article 98.1 of the Constitution) should be interpreted taking into account the parliamentary form of government of the Republic of Moldova. The Court found that the constitutional provisions (Article 98.1 of the Constitution) provide for the exclusive prerogative of the President of the Republic to designate a candidate for the office of Prime Minister. At the same time, the Court noted that, although it is exclusive, the designation prerogative cannot be discretionary, since the President may designate a candidate for the office of Prime Minister only following consultations with parliamentary factions. The essential element of the procedure of forming the Government is the vote of the Parliament; the Government will only be politically responsible before the Parliament, which can dismiss it.

Following this reasoning and taking into account the principles set out in its case law, the Moldovan Constitutional Court held that, in order to secure his constitutional powers to propose a candidate for the office of Prime Minister, the President of the Republic, elected by a parliamentary majority, must ensure, through consultations with parliamentary factions, both the support of the parliamentary majority and the possible constructive cooperation with the minority, which is in the opposition.

The Constitutional Court appreciated the interpretation according to which the discretionary right of the President to designate a candidate for the office of Prime Minister as legally illogical. At the same time, the President cannot be denied the right to assess the character, competences, experience and, ultimately, the ability of a person, either politically involved or not, to lead the Government and to attract the political support of the parliamentary majority, which will support him/her for the tenure of the legislature, but has no constitutional support to impose their own candidate.

In the event of the formation of the Government as a result of parliamentary elections, the President cannot but recognise the outcome of the popular vote, the designation being carried out as follows: the President takes note of the official results of the elections and entrusts the mandate to form the Government to a person who has been proposed by an absolute majority in the Parliament. Therefore, either a majority of political forces in the Parliament is formed or the Parliament is dissolved and early elections are conducted.

The Constitutional Court came to the conclusion that, in the event of an absolute parliamentary majority being forged, the President of the Republic must designate a candidate supported by this majority; and only when there is no absolute parliamentary majority forged, the President of the Republic of Moldova is under the duty, following consultation with parliamentary factions, to designate a candidate for the office of Prime Minister, even if parliamentary factions do not agree with the proposal of the President.

The constitutional doctrine formulated in this judgment regarding the powers of the President of the Republic to designate a candidate for the office of Prime Minister to be approved by the Parliament in cases of forming a new Government can also be applied to the formation of the Government following parliamentary elections, as well as where a new Government is formed following the resignation of the Government or after a motion of no confidence is voted by the Parliament.

In considering the constitutional doctrine that was formulated in the judgment of 29 December 2015 regarding the powers of the President of the Republic to propose a candidate for the office of Prime Minister to be approved by the Parliament, it is also important to analyse the doctrine developed by the Constitutional Court of the Republic of Moldova in its judgment of 22 April 2013 regarding the powers of the President of the Republic to appoint an acting Prime Minister. In this judgment, the Court considered the issue concerning the appointment of the ad interim Prime Minister upon the resignation of the Government in the Parliament following a motion of no confidence on the grounds of suspected involvement of its members in corruption. In the judgment at issue, the Constitutional Court interpreted the provisions of Article 101(2) of the Constitution of the Republic of Moldova. When formulating the doctrine in relation to the appointment of the ad interim Prime Minister, the Constitutional Court pointed out that, in the event of the resignation of the Government upon the expression  of no confidence on the grounds of the suspicion of corruption, the President of the Republic may not appoint for the office of Prime Minister on a temporary basis the Prime Minister of the Government that has been dismissed on the said grounds of suspected corruption, and must appoint another member of the Government whose integrity has not been affected. In this case, the President is not obliged to consult parliamentary factions for the nomination of the ad interim Prime Minister. The Constitutional Court of the Republic of Moldova also mentioned that nothing forbids the President to consult the opinion of parliamentary fractions referring the selection of the member of the Government to be nominated as ad interim Prime Minister.

Thus, differently from the situation when a new Government is formed (following parliamentary elections or for other reasons that led to the resignation or removal of the Government), in the event of temporary substitution for the Prime Minister, the President of the Republic has no duty to consult the parliamentary fractions and has the discretionary power to choose a member of the cabinet of ministers to act as ad interim Prime Minister.

The constitutional doctrine formulated regarding the powers of the President in the judgment of 29 December 2015 should, first of all, be assessed in the context of the constitutional regulation of the Constitution of the Republic of Moldova that was in force at the time of the adoption of the said judgment, i.e. at the time when the President of the Republic, following the constitutional amendments of 2000, had to be elected in the Parliament. In its judgment of 4 March 2016, the Constitutional Court of the Republic of Moldova ruled the constitutional amendments related to the modality of presidential elections to have been in conflict with the Constitution; consequently, the previous constitutional provision that the President must be elected in direct elections was upheld.

The constitutional amendments of 2000 changed the system of election of the President from direct elections to elections by the legislature with the vote of 3/5 of its members. As a result, the amendments to the Constitution that anticipated a different and more complicated system of the election of the President caused political instability. In its judgment of 4 March 2016, the Constitutional Court, after examining the procedural and substantive elements, not only ascertained the failure to follow the procedure of the adoption of the amendment to the Constitution but also emphasised, inter alia, that the challenged amendment of Article 78 generated a rapture of the constitutional unity, as it failed to secure the normal functioning of the presidential institute and generated an imperfect system of government, and after examining different aspects of the constitutionality of the law amending the Constitution, the Constitutional Court declared it to have been inconsistent with the Constitution. In this judgment, the Constitutional Court described the situation that resulted after declaring the amendment to the Constitution as unconstitutional and stressed that the wording of Article 78 of the Constitution applicable prior to the entry into force of the challenged law must become applicable again, so the President of the Republic had to be elected by popular vote.

Thus, in examining the relevance of the doctrine at issue, it is important to be aware of the analysed constitutional doctrine as formulated in the judgment of 29 December 2015 by the Moldovan Constitutional Court in relation to the powers of the President of the Republic in forming the Government, which was interpreted by taking account of the previous modality of presidential elections, as well as to be aware of how this doctrine squares with the currently existing, already changed, constitutional setup, influenced by the judgment of the Constitutional Court of Moldova of 4 March 2016, by which, as mentioned before, certain amendments introduced in 2000 to the Constitution of Moldova in relation to the modality of the election of the President of the Republic were ruled to have been unconstitutional. According to the provisions of Article 78 of the Constitution of Moldova of 1994 that are currently in force, the President of the Republic is elected not in the Parliament but in a general direct election.

In the judgment of 29 December 2015, when interpreting the powers of the President to nominate a candidate for the office of Prime Minister to be approved by the Parliament, the Constitutional Court of Moldova underlined, as one of the main arguments, the procedure of election of the President of the Republic, which affects the content of presidential powers. It should be noted that, when the Constitution was amended in 2000, amendments affected not only the modality of election of the President but also the powers of the President. The latter amendment was not dealt within the judgment of 4 March 2016 (neither was this matter contested by the petitioners). In view of the aspects of the constitutional amendments of 2000, the assumption can be drawn that the Constitutional Court of Moldova possibly did not examine this matter due to the fact that the amendment concerning the powers of the President, which envisaged the narrowing of the powers of the President with respect to the Government, was reviewed in the conclusion of the Constitutional Court of 1999 assessing the submitted draft amendments to the Constitution; the draft amendment concerning the above-mentioned aspect during the process of adoption in the Parliament remained unchanged; therefore, the formal grounds for adopting such amendments to the Constitution should not become an object of constitutional dispute.

In view of the modality of election of the President of the Republic in direct elections and taking account of the powers of the President under which the President had the discretional right to propose a candidate for the office of Prime Minister to be approved by the Parliament, as well as in view of certain powers of the President with respect to the Government, the Constitutional Court regarded the initial regulation of constitutional setup as established in the Constitution of the Republic of Moldova of 1994 as consolidating a semi-presidential republican form of government and as not precluding the President from freely nominating a candidate to be approved by the Parliament for the office of Prime Minister.

Considering that, after the Constitutional Court had delivered the judgment of 4 March 2016, in which certain amendments to the Constitution were declared in conflict with the Constitution, only the modality of election of the President was changed and not the powers of the President, it is possible to draw the assumption that the doctrine developed in the judgment of 29 December 2015 in relation to the powers of the President in nominating a candidate to be approved by the Parliament for the office of Prime Minister will continue to be relevant. Since, as indicated by the Constitutional Court of the Republic of Moldova in the judgment of 4 March 2016, the form of government of the Republic of Moldova remained unaffected by the changes in the modality of election of the President, i.e. the Republic of Moldova has remained a parliamentary republic.

By way of conclusion it can be noted that the forms of government of the Republic of Lithuania and of the Republic of Moldova have acquired certain additional common qualities. Under the Lithuanian and Moldovan constitutional regulations, the Presidents in both states are elected by universal suffrage, and their powers are not broad. Thus, the constitutional doctrine formulated by the Lithuanian Constitutional Court in its ruling of 10 January 1998 can be considered relevant in assessing the constitutional framework of Moldova, its form of government and the powers conferred on the President of the Republic in forming the Government. In the light of the constitutional doctrine developed by the Lithuanian Constitutional Court in the ruling of 10 January 1998, another assumption can be made that, upon the delivery of the judgment of 4 March 2016 by the Moldovan Constitutional Court, which led to changes in the modality of election of the President of the Republic, the form of government of the parliamentary Republic of Moldova has also gained certain elements of a semi-presidential republic, as well as that the constitutional doctrine formulated in the ruling of the Lithuanian Constitutional Court of 10 January 1998 can be regarded as pertinent in interpreting the current constitutional setup of the Republic of Moldova.

Unison of constitutional doctrines extends to certain other decisions adopted by the Lithuanian and Moldovan Constitutional Courts. It similarly becomes evident in analysing, inter alia, the ruling of the Lithuanian Constitutional Court of 24 January 2014 and the judgment of the Moldovan Constitutional Court of 4 March 2016 concerning the constitutionality of constitutional amendments; another set of decisions regards the reduction of social guarantees during the global economic crisis, inter alia, in the ruling of the Lithuanian Constitutional Court of 1 July 2013 and the judgments of the Moldovan Constitutional Court of 10 September 2013 and 6 November 2014etc.

The proximity of constitutional doctrines is determined by various factors, including the development of statehood, shared features of the constitutional setup and similarities in political processes taking place in the states. Regardless of this, in the absence of close cooperation between the courts themselves and their striving to exchange their experience in constitutional jurisprudence, the occurring similarities would constitute single isolated cases, not contributing to the development of constitutional precedents.