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Constitutional Court of Moldova has restored the right of citizens to elect the President
which may be subject to editorial revision)
On 4 March 2016, the Constitutional Court of Moldova delivered a judgment on constitutionality of certain provisions of the Law no. 1115-XIV of 5 July 2000 amending the Constitution of the Republic of Moldova (procedure to elect the President) [Complaint no. 48b/2015].
Circumstances of the case
The case originated in a complaint lodged with the Constitutional Court on 12 November 2015 by 18 MPs of the parliamentary faction of the Liberal Democratic Party of Moldova: Valeriu Ghileţchi, Tudor Deliu, Liliana Palihovici, Angel Agache, Maria Ciobanu, Vladimir Hotineanu, Chiril Lucinschi, Grigore Cobzac, Vadim Pistrinciuc, Iurie Ţap, Ion Balan, Nae-Simion Pleşca, Ştefan Creangă, Octavian Grama, Gheorghe Mocanu, Mihaela Spatari, Aliona Goţa, and Victor Roşca, on the constitutionality of section 2 in its entirety and the phrase „except the case provided for in Article 78.5" of paragraph 5 of Article I of Law no.1115-XIV of 5 July 2000 on amending the Constitution of Moldova, that have changed the method of electing the President of the Republic of Moldova.
In essence, the authors of the complaint requested the Court, following an interpretation of Article 135.1.c in conjunction with Article 141.2) of the Constitution, to explain:
„1) Whether it is necessary and/or mandatory for a repeated Opinion of the Constitutional Court to be delivered on the amendments of the MPs accepted by Parliament in the second reading of a draft law revising the Constitution, subsequent to the submission to Parliament of the draft law along with the Opinion of the Constitutional Court?
2) Whether the procedure of adopting a draft constitutional law that has been amended substantially and conceptually by the MPs during the second reading without the delivery of a repeated Opinion of the Constitutional Court has been violated?
3) In case the Constitutional Court delivers a repeated Opinion on a draft law revising the Constitution, substantially amended during the second reading in Parliament, shall this draft be subjected to all the procedures provided in Article 143.1 of the Constitution?"
In the same context, the authors of the complaint requested to verify the compliance of certain provisions of the Law no. 1115/2000, in respect of the amendments to Articles 78 and 85.4 of the Constitution, taking into account the procedure of their adoption, with Articles 135.1.c and 142.1 of the Constitution, as well as the constitutional principle of rule of law, enshrined in the Preamble of the Constitution and Article 1.3 of the Constitution.
In the public hearing, the author fleshed out the subject of the complaint, specifying that the authors have requested only the control of constitutionality of amendments addressing the mechanism of electing the President of the Republic of Moldova by a vote of 3/5 of the MPs. The author of the complaint did not challenge other amendments that did not essentially alter the content of the original draft law endorsed by the Constitutional Court and which did not affect the consistency of constitutional matter and its balance.
According to the authors of the complaint, on 5 July 2000 the MPs deliberately adopted in the Parliament the amendments to the Constitution which were not endorsed by the Constitutional Court, contrary to the procedure expressly provided in the Constitution and in the Rules of the Parliament concerning the amendment of the Constitution.
According to the authors of the complaint, failure to repeatedly request the Opinion of the Constitutional Court on the amendments operated in the initial draft law and the adoption of the challenged amendments without its Opinion generated a deadlock and institutional imbalances, affecting the balance of the constitutional matter, contrary to the limits of revision provided in Article 142 para.(2) of the Constitution.
In the public hearing of the Court, the complaint was presented by Mr Valeriu Ghileţchi, Member of Parliament and author of the complaint. The Government was represented by Mr Eduard Serbenco, Deputy Minister of Justice. The Parliament has not delegated a representative.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Victor POPA, judges
Conclusions of the Court
Having examined the complaint, the Court noted that it is mainly focused on the possibility of the Parliament to amend the draft law revising the Constitution upon which the Constitutional Court delivered its Opinion.
Therefore, aiming at solving this case, the Court pinpointed the content of the provisions expressly enshrined in the Constitution referring to the amendment of the Constitution.
In this context, the Court mentioned that constitutional provisions referring to the amendment of the Constitution are determined by the notion, nature and goal of the Constitution itself. In this regard, any amendment may only be operated upon complying with the principles of Constitution’s supremacy, its stability, consistency of provisions and balance of the values enshrined by the Supreme Law, as well as the power of the Constitutional Court to deliver opinions on the initiatives to amend the Constitution within the shared competence of the Parliament and of the Court in the process of amending the Constitution.
The Court noted that the stability of the Constitution is a characteristic which, along with other characteristics (among which and, first of all, with special legal force, supreme of the Constitution), establishes a difference between the procedures of adopting amendments to the Constitution and those concerning the adoption of other categories of law. Pursuing this goal, technical rigid means of protecting its stability are enshrined in the Constitution.
Therefore, when amending the Constitution, there shall be considered that it is an integral act, all the provisions of the Constitution being interconnected to the extent that the content of certain provisions of the Constitution determine the content of other provisions thereof. Provisions of the Constitution make up a harmonious system, so that none of the constitutional provisions may be contrary to other provisions thereof. Both the nature of the Constitution as an act with supreme legal force and the idea of constitutionality imply that there are any and there cannot exist any lacks or internal contradictions of the Constitution.
In this respect, no amendment to the Constitution can lead to a collision of Constitutional provisions or values enshrined in constitutional provision. No amendment of the Constitution may create a new constitutional regulation which would serve as grounds for a new provision of the Constitution that would annul or be contrary to another provision of the Constitution, so that it would render it impossible to deem the respective provisions as being in harmony.
The Court noted that Article 141 para.(2) of the Constitution provides for the draft laws amending the Constitution to be submitted before Parliament only along with the Opinion of the Constitutional Court, adopted with the vote of at least 4 judges.
This power has been vested with the Constitutional Court by the framers of the Constitution, thus specifically considering the role and the position of the Court in political and legal system of the society, which allows it to analyse the amendments with impartiality, apart from the temptation of political actors to take decisions depending on the turn of events.
In this context, Opinions of the Court on the draft laws amending the Constitution are not a mere formality, they aim at safeguarding fundamental values of the Constitution from abusive practices of political, social and institutional actors.
In this regard, even the disregard of limits set for constitutional amendments would be confirmed by Parliament’s vote, such a vote cannot cover the constitutional fraud.
Subsequently, under the Constitution, when the Parliament examines certain draft laws amending the Constitution, it may amend the proposed draft laws endorsed by the Constitutional Court only to the extent the amendments do not affect substantially the content of the respective draft laws.
Following a comparison between the initial draft law submitted to the Constitutional Court for opinion and the Law that has actually been adopted by the Parliament it is obvious that:
- The adopted draft law has altered art. 78 of the Constitution and increased to 3/5 the number of votes of MPs necessary to elect the President, whereas the initial draft law proposed only the majority of the elected MPs.
- The adopted draft law has supplemented art. 78 with three new paragraphs related to repeated elections as well as dissolution of the Parliament, whereas the initial draft law failed to contain such a provision. Having studied the debates in Parliament it can be clearly resumed that there had been an attempt to strengthen a mechanism of pressure in order to impose the MPs to elect the President.
- The adopted draft law has supplemented para.(4) of art. 85 of the Constitution with provisions referring to the exception to the prohibition to dissolve the Parliament within the last 6 months of the term of office of the President of the Republic of Moldova, despite the fact that the initial draft law failed to contain any proposal to amend this article.
Given the above mentioned facts, despite that both draft laws under discussion pursued the same goal, namely modification of the existing constitutional framework for the election of the President of the Republic of Moldova by the Parliament, the scope of application of the legal constitutional regulation proposed by the draft law upon which the Constitutional Court delivered its Opinion was altered by the draft law that has ultimately been adopted which provided substantially different means to fulfil the aforementioned goal as compared to the initial draft law and contained, in addition to that, the proposal to modify other constitutional provisions: the number of votes necessary to elect the President, number of ballots and repeated elections, dissolution of the Parliament in case of failure to elect the President. As a consequence, in light of their content, the daft law that has been submitted to the Constitutional Court and the draft law that has been adopted are substantially different.
The challenged provisions have thus been adopted in violation of the procedures provided by the Constitution.
Having ascertained these violations the Court has verified also the impact of the adopted provisions upon the constitutional framework.
In this context the Court notes that the constitutional imperative that has been previously mentioned referring to the unity of the substance and the balance of values comprised in the Constitution, as a constitutional value, implies also the constitutional duty not to adopt any regulations that could create premises for conflicts and blockings.
The Court held that the text of the Constitution not only permits but also imposes repeated dissolution of the Parliament if the legislative is incapable to elect the President of the state. Theoretically, the Parliament may be dissolved unlimitedly given the same reasons.
The situation of the Republic of Moldova is unique from this point of view and such a particularity is the result of modifications operated in Article 78 of the Constitution in 2000.
All other constitutions containing similar mechanisms on the election of the president contain necessary provisions to avoid the vicious circle of anticipated elections and generally impose particular restrictions regarding the dissolution of the Parliament. The goal of such provisions is to prevent political instability and to fight against any abuses referring to repeated dissolution.
Contrary to other constitutions, the Constitution of the Republic of Moldova does not provide any rule that would permit avoidance of the vicious circle of elections and dissolutions in case of lack of compromise between the main political parties, in order to secure both adequate functioning of state institutions and the stability of the constitutional system of the country.
Such a regulation outlines a contradiction that is present in the Constitution of the Republic of Moldova: while the constitutional provisions referring to the election of the president are supposed to secure the well-functioning of constitutional bodies, these provisions, on the other hand, allow unlimited repetition of elections and dissolutions which, in fact, prevent efficient functioning thereof and provide opportunities for continuous constitutional crises.
Moreover, the strict implementation of such provisions leads to a cumulation of functions by the Speaker of the Parliament who is also entitled to fulfil the functions of Interim President for a period longer than the one indicated in the Constitution. As a matter of fact, within 2009 and 2012 the interim office of the President (3 years and 6 months) actually consumed almost the entire term of office of a President (4 years). The constitutional provision that regulates limitation of a suchlike situation to a 2 months term, a period necessary to organize presidential elections, has thus been circumvented.
The Court stated that the legislative intervention of 2000 into the mechanism regulated by Article 78 of the Constitution, originally meant to secure the functioning of state institutions, has created an unusual situation that caused a break of this constitutional unity, as it fails to secure the normal functioning of the Presidential institution. In this way, given the Parliament’s lack of capacity to elect a compromise candidate there had been created a situation of political and institutional deadlock that lead to a vicious circle of elections and dissolutions. Over the years Article 78 of the Constitution, that originally was conceived as an exceptional mechanism, had been invoked more often the ordinary mechanism, as there had been organized 3 anticipated parliamentary elections, of which 2 were held in 2009-2010 – the period when the Parliament was not able to elect the head of the state within 4 unsuccessful attempts.
The fact that these modifications had generated and continue to generate uncertainties regarding the election of the President and functioning of constitutional institutions is ascertained also by a great number of requests to interpret Article 78 of the Constitution, as well as of draft laws to review these modifications. Despite all these efforts this particular source of constitutional blockings has never been removed.
The Venice Commission in the opinions delivered on various occasions stressed its concerns and mentioned that, upon a general analysis of the Constitution, as well as the specific scope of Article 78 meant to secure efficient functioning of constitutional bodies, there should exist a limitation for such repetitions, in order to prevent the abuses related to the repeated dissolutions and to provide necessary guarantees for political stability within the country.
The Court is thus in the position to eliminate the mechanisms that generate imbalance of constitutional institutions thus saving the coherence of the Constitution.
In this context, the Court mentioned that the form of election of the President cannot represent a source for constitutional crises.
The Court held that the constitutional reform of 2000 in fact has generated an imperfect system of government, there existing premises for a potential conflict between the state authorities, and this fact has directly evolved from the Parliament ignoring the Opinion of the Constitutional Court.
In light of the above mentioned, following the systemic coherence of the Constitution and with a view to secure its functioning, the Court stated that the challenged provisions have been adopted in violation of the procedure on the revision of the Constitution provided in Art.135 para.(1) let. c), Art.141, Art.142 para. (2) and Art.143 para.(1).
The Court also recalled that the nature of the Constitution itself as an act of supreme legal force and the idea of constitutionality implies the fact that in the text of the Constitution there cannot exist and there are any inner contradictions.
Thus, given the imperative of avoiding the legislative vacuum as well as taking into account the urgency in approaching the constitutional deadlock in the context of forthcoming expiry of the term of office of the acting President, the Court ordered the revival of the legal mechanism in force prior to the modifications operated to the Constitution, that would ensure direct election of the President by the citizens.
Concurrently the Court outlined that the effects of this Judgment are applicable only for the future and shall not extend over the term of office of the acting President of the Republic of Moldova. Thus the President of the Republic of Moldova elected by the vote of the Parliament cast on 16 March 2012 shall remain in office until the expiry of the term for which he had been elected. Also, this Judgment does not represent basis to recognize the acts adopted by the President elected based on the provisions of Article 78 declared unconstitutional or by the person having exercised the interim office of the President as unconstitutional solely on these grounds.
In addition, the Court declared unconstitutional the provisions of the Rules of the Parliament that provided the possibility to substantially modify the contents of a draft law to revise the Constitution that has been submitted for endorsement to the Constitutional Court.
Arguments that were held in order to motivate the solution pronounced by the Court shall be presented in the text of the Judgment that shall be published in the Official Journal.
Judgment of the Court
Given the aforestated arguments, the Constitutional Court held that, within the meaning of article 135 para. (1) let. c), as corroborated with the provisions of Art. 141 para.(2) and 143 para.(1) of the Constitution:
a) Following the issue of the Opinion of the Constitutional Court, no interventions are admitted in the text of the draft law to revise the Constitution, and any disregard or exceeding of its limits may be regarded as grounds for the nullity of any such modifications.
b) If there are any amendments accepted by the MPs during the second reading of the draft law on the revision of the Constitution, a repeated Opinion of the Constitutional Court is needed.
c) If the Constitutional Court delivers a repeated Opinion over the draft law to revise the Constitution that has been substantially amended during the second reading in the Parliament, this draft law shall be subject to all the procedures provided in Art. 143 para.(1) of the Constitution.
In this context, the Court declared unconstitutional the provisions of the law on revising the Constitution regarding the procedure of electing the President of the Republic of Moldova by the vote of 3/5 of the MPs.
The Court revived the provisions regarding the election of the President by direct, secret and freely expressed ballot, in the wording prior to unconstitutional modification.
In order to avoid the legal vacuum the Court declared unconstitutional the Law on the election of the President of the Republic of Moldova and revived the Election Code in the part referring to the election of the President by the direct vote of the citizens.
In the same context, the Court declared unconstitutional the provisions of the Rules of Parliament that allowed substantive modification of the draft law endorsed by the Constitutional Court.
The Judgment of the Constitutional Court is final, cannot be appealed, enters into force upon adoption and is published in the Official Journal.
You can find the full text of the judgment here.