The Court ascertained the circumstances justifying the Interim Office of President of the Republic of Moldova within the governmental reshuffle

On 2 January 2018, the Constitutional Court of Moldova delivered an Opinion on the ascertainment of the circumstances justifying the interim office of the President of the Republic of Moldova within the governmental reshuffle (Application no.176f/2017).

Circumstances of the case 

The case originated in an application lodged with the Court by a group of MPs, requesting:

"1. To ascertain the circumstances justifying the interim office of the President of the Republic of Moldova in order to ensure the exercise of constitutional duties of appointing the candidates proposed by the Prime Minister of the Republic of Moldova for the offices of Vice Prime Ministers, Minister of Justice, Minister of Economy and Infrastructure, Minister of Agriculture, Regional Development and Environment, Minister of Foreign Affairs and European Integration and Minister of Health, Labour and Social Protection, as well as their entering into office.

2. To ascertain the establishment of interim office of the President of the Republic of Moldova in order to ensure the exercise of constitutional duties of appointing the candidates proposed by the Prime Minister of the Republic of Moldova for the offices of Vice Prime Ministers, Minister of Justice, Minister of Economy and Infrastructure, Minister of Agriculture, Regional Development and Environment, Minister of Foreign Affairs and European Integration and Minister of Health, Labour and Social Protection, as well as their entering into office."

The application was examined by the Constitutional Court in the following composition:

Mr Igor DOLEA, Chair of the sitting,

Mr Aurel BĂIEȘU,

Mrs Victor POPA,

Mr Veaceslav ZAPOROJAN,  justices

Conclusions of the Court

Having examined the materials of the case file and having heard the arguments of the parties, the Court noted that under Article 135.1.f of the Constitution it enjoys the competence to ascertain the circumstances justifying the ad interim office of President of the Republic of Moldova.

The Court held that by Judgment no.28 of 17 October 2017 it stated that the establishment of the interim office, caused by deliberate refusal to execute one or more constitutional duties and the circumstances justifying the interim office of the President, shall be determined in each particular case by the Constitutional Court in accordance with the competence assigned to it by Article 135.1.f of the Constitution, upon the referral of the subjects provided by Articles 38.1 and 38.2.c of the Code of Constitutional Jurisdiction, according to their area of competence.

The Court found that, under Article 38.1 of the Code of Constitutional Jurisdiction, MPs are entitled to lodge an application with the Constitutional Court in any matter within their competence, including the verification of the circumstances justifying the interim office of President of the Republic of Moldova in the case of deliberate refusal to execute one or more constitutional duties.

Article 38.2.c of the Code of Constitutional Jurisdiction, invoked by the representative of the President, refers to the situation of establishment of the interim office of President in the case of vacancy of office, provided by Article 90 of the Constitution, situation that is distinct from the present case.

In the light of the above, the Court rejected the request of the representative of the President and continued the examination on the merits of the present case.

The Court recalled that, in the Judgment no. 2 of January 24, 2017, it stated that the President of the Republic of Moldova may refuse, only once, the Prime Minister's proposal for the appointment of a person to the vacant office of Minister, in case he/she considers that the proposed candidate does not meet the legal requirements for exercising the office of Member of Government.

At the same time, the Court held that the Prime Minister may come with another proposal to the President or reiterate the same candidature for the office of Minister, that the President is bound to appoint.

In the present case, the Court found that by the letter of 20 December 2017, the Prime Minister of the Republic of Moldova proposed to the President of the Republic of Moldova the appointment of the candidates for the offices of Vice Prime Ministers, Minister of Justice, Minister of Economy and Infrastructure, Minister of Foreign Affairs and European Integration, Minister of Health, Labour and Social Protection and Minister of Agriculture, Regional Development and Environment.

In turn, on 21 December 2017, the President of the Republic of Moldova rejected the candidatures proposed by the Prime Minister.

At the same time, on 22 December 2017, the Prime Minister reiterated his previous proposals. Correspondingly, on 28 December 2017, the President informed the Prime Minister that he maintains his point of view on the rejection of the candidates proposed for appointment in the abovementioned offices.

The Court noted that in his letters of refusal the President of the Republic of Moldova claimed that the Prime Minister, and not the president of a party, should initiate governmental reshuffles and that these governmental reshuffles should be of insignificant proportion. The President also mentioned that against most of the candidates proposed by the Prime Minister there are grave suspicions of integrity and that they do not meet the minimum requirements provided for by Articles 16.1 and 16.2 of the Law no. 136 of 7 July 2017 on the Government.

Thus, referring to the allegations of the President that the Prime Minister and not the president of a party must initiate a governmental reshuffle, the Court underlined that the latter has been proposed to the President of the Republic of Moldova by a request of the Prime Minister on 20 December 2017, thus being met the requirements of Article 98.6 of the Constitution.

Moreover, the proposed reshuffles were accepted by the President of the Republic of Moldova who, on the following day, the 21 December 2017, issued the decrees on the revocation of the Vice Prime Minister, Minister of Justice, Minister of Economy and Infrastructure, Minister of Foreign Affairs and European Integration, Minister of Health, Labour and Social Protection and Minister of Agriculture, Regional Development and Environment.

At the same time, in its Judgment no. 28 of 17 October 2017, the Court ruled that governmental reshuffle does not imply the exercise of the Parliament's competence, since any changes in its composition take place within the executive power. Each member of the Government individually bears political responsibility in front of the Prime Minister. The Parliament cannot withstand the revocation of a member of the Government; however, if it loses its confidence in the Government, it can make use of the instrument of vote of no confidence against the entire Government.

Concurrently, the Court noted that in his refusal the President did not indicate what were the legal requirements for the appointment of Government members, provided by Articles 16.1 and 16.2 of the Law no.136 of 7 July 2017 on the Government, which the candidates proposed by the Prime Minister had failed to meet.

Subsequently, the Court held that the refusal of the President to fulfil his constitutional duty of appointing the candidates proposed repeatedly by the Prime Minister and to execute the Judgment of the Constitutional Court no. 2 of 24 January 2017, amount to a grave infringement of his constitutional duties and of the oath taken when sworn in.

Thus, considering that the President refused deliberately to fulfil his constitutional duty of appointing the candidates proposed repeatedly by the Prime Minister, the Court held that in the spirit of Article 91 of the Constitution, the President finds himself in a temporary impossibility to execute the respective duty, which represents a justification for the establishment of the interim office in order to fulfil this constitutional duty.

Under Article 91 of the Constitution, when exercising the interim office, the Speaker of Parliament or the Prime Minister, as an interim President, shall issue the appointment decrees for the offices of Vice Prime Ministers, Minister of Justice, Minister of Economy and Infrastructure, Minister of Foreign Affairs and European Integration, Minister of Health, Labour and Social Protection and Minister of Agriculture, Regional Development and Environment and shall receive their oath.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

1. Ascertained as a circumstance justifying the interim office of the President of the Republic of Moldova - within the procedure of governmental reshuffle - the deliberate refusal of the President to execute his constitutional duty of appointing the candidates who were proposed repeatedly by the Prime Minister, which constitutes, in the sense of Article 91 of the Constitution, a temporary impossibility to fulfil the respective duty.

2.    Under Article 91 of the Constitution, in order to exercise the ad interim office, the Speaker of Parliament or the Prime Minister shall issue, in the capacity of interim President, the appointment decrees for the offices of Vice Prime Ministers, Minister of Justice, Minister of Economy and Infrastructure, Minister of Foreign Affairs and European Integration, Minister of Health, Labour and Social Protection and Minister of Agriculture, Regional Development and Environment and shall receive their oath.

This Opinion of the Constitutional Court is final, cannot be subject to any appeal, enters into force as of the date of adoption and is published in the Official Journal of Moldova.

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