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Home | Media | News | Declaring unconstitutional the Parliament Decision on the results of ordinary elections for the office of President of the Republic of Moldova
12.01
2012 Declaring unconstitutional the Parliament Decision on the results of ordinary elections for the office of President of the Republic of Moldova
On 12 January 2012 the Constitutional Court pronounced the judgment on constitutionality review of the Parliament Decision № 266 of 23 December 2011 on the results of ordinary elections for the office of President of the Republic of Moldova (Complaint № 37a/2011). The judgement was sent for publication in the Official Gazette (Monitorul Oficial). Circumstances of the case The case originated in the complaint lodged at the Constitutional Court on 26 December 2011 under Article 135 para. (1) letter a) of the Constitution, 25 para. (1) letter g) of the Law on Constitutional Court and Article 38 para. (1) letter g) of the Constitutional Jurisdiction Code by the Member of Parliament (MP) Mr. Mihai Godea on constitutionality review of the Parliament Decision № 266 of 23 December 2011 on the results of ordinary elections for the office of President of the Republic of Moldova. On 23 December 2011, the Parliament adopted the Decision № 266 by which was taken note of the tabulation of voting results in the ordinary elections for the office of President of the Republic of Moldova held on 16 December 2011 submitted by the Special Commission on unfolding elections for the office of President of the Republic of Moldova. By this decision, the Parliament found that as a result of ordinary elections of 16 December 2011, the President of the Republic of Moldova was not elected. According to complaint's author, the clause set out in Article 78 para. (1) of the Constitution, reiterated in Article 8 para. (1) of the Law on the election of the President of the Republic of Moldova with regard to secret ballot is mandatory and must be just followed by MPs participating in the election of the Head of State. Similarly, the author of complaint considers that expressing voter's will (in this case - MP) and the way of its expression should be unconditionally secret which means that MPs should vote for candidates running for the office of President in such conditions so that their will would not be known and influenced by anyone.
The author claimed that violation of the principle of secret ballot constitutes a background flaw of the vote expressed in the elections of 16 December 2011 for the office of President of the Republic of Moldova and as the number of voters who violated the secrecy of ballot was considerable, these elections could not be confirmed as being unfolded legally and were supposed to be cancelled on the ground of infringing the voting procedure.
In the public plenary session the author extended the subject of complaint, requesting verification of constitutionality of the Parliament Decision № 287 of 28 December 2011 on setting the date of repeated elections of the President of the Republic of Moldova. The representatives of authorities acknowledged in the public session that there was a problem regarding the extent of constitutional protection of the secret ballot, asking the Court to develop its conclusions stated in the Constitutional Court's Judgment № 39 of 4 December 2000 on the interpretation of some provisions of Article 78 para. (1) of the Constitution of the Republic of Moldova. The complaint was judged by the Constitutional Court in the following composition:
Alexandru TĂNASE, President, Judge-Rapporteur, Mr. Victor PUŞCAŞ, Mr. Petru RAILEAN, Mrs. Elena SAFALERU, Mrs. Valeria ŞTERBEŢ, judges Conclusions of the Court Having heard the parties' arguments, the Court noted that in accordance with the provisions of Article 78 para. (1) of the Constitution, the President of the Republic of Moldova should be elected by the Parliament by secret ballot and Article 8 para. (1) of the Law on election procedure of the President of the Republic of Moldova provides that voting for candidates running for the office of President of the Republic of Moldova should be conducted secretly. In fact, this is the only constitutional provision of procedural nature referring to organizing and unfolding of presidential elections in relation to which the Constitutional Court is called upon to rule.
At the same time, the Court noted that the procedure of voting the President of the Republic of Moldova by Parliament had been the subject of the Constitutional Court's Judgment № 39 of 4 December 2000 on the interpretation of some provisions of Article 78 para. (1) of the Constitution of the Republic of Moldova. In its previous judgment, the Constitutional Court said that the election of the Head of State by Parliament in another way than by secret ballot is prohibited. In other words, the clauses set out in Art. 78 para. (1) of the Constitution and Art. 8 para. (1) of Law № 1234-XIV of 22 September 2000 are mandatory in nature and must be exactly followed by MPs participating in the election of the President of the Republic of Moldova. Likewise, in its Judgment № 39 of 4 December 2000 the Court said that MPs should vote for candidates running for the office of President of the Republic of Moldova in such conditions so that their will would not be known and influenced by anyone. The Court accepted the Government's request to develop the conclusions stated in the Judgment № 39 of 4 December 2012. In this context, the Court reiterated that the text of the Constitution revealed no exemption from secrecy of voting while electing the President. A proof of this is that if in other cases the Constitution uses the expression "with the vote [...]", without specifying whether it should be open or secret (see Articles 74, 81, 82, 89, 98, 106, 111, 141, 143 of the Constitution), in this case the Constitution uses the sign "is selected", specifying "by secret vote" without providing any exceptions or, at least, the possibility of the legislator of regulating exemption situations. The wording of Article 78 clearly indicates the will of constituent legislator to apply this constitutional guarantee at all elections for the office of President of the Republic of Moldova. This protection extends from the receipt of the ballot paper up to casting the ballot paper into the sealed ballot box, so that the expressed option could not be identified. The Court held that international bodies and instruments do not differentiate the guarantees for secrecy of voting depending upon its expression in elections by direct or indirect universal suffrage and at the parliamentary meetings to make individual appointments. The Court mentioned that these guarantees had to be provided during all electoral exercises by secret ballot, regardless of the type of election. The Court also held that secret voting is not only a fundamental right but an obligation, as well. Consequently, giving up the right to secret ballot does not exempt MPS from the obligation to ensure the secrecy of vote which can not be waived. Thus, the election officials are required to stop any manifestation which violates the secrecy of voting including voters deliberately showing their marked ballots. In this context, the Court found that while unfolding the election procedure of the President on 16 December 2011 the rules of Article 78 and, implicitly, of Articles 1 and 2 of the Constitution were flagrantly violated. The Court held that, due to their extent, the violations were likely to influence decisively the final results of ordinary elections for the office of President of the Republic of Moldova. In respect of the request for verification of constitutionality of the Parliament Decision № 287 of 28 December 2011 on setting the date of repeated elections of the President of the Republic of Moldova, formulated in the public plenary session, the Court notes that this one is in direct connection with the Parliament Decision № 266 of 23 December 2011 on the results of "ordinary" elections for the office of President of the Republic of Moldova, the date of "repeated" elections being set following the adoption of this decision. In light of the above, the Court concluded that the Parliament Decision № 266 of 23 December 2011 on the results of ordinary elections for the office of President of the Republic of Moldova and, implicitly, the Parliament Decision № 287 of 28 December 2011 on setting the date of repeated elections of the President of the Republic of Moldova are to be declared unconstitutional. Judgment of the Court Based on the arguments, the Constitutional Court declared unconstitutional the Parliament Decision № 266 of 23 December 2012 on the results of ordinary elections for the office of President of the Republic of Moldova and the Parliament Decision № 287 of 28 December 2011 on setting the date of repeated elections of the President of the Republic of Moldova. The judgment of the Constitutional Court is final, cannot be subject to any remedies, shall enter into force upon adoption and be published in the Official Gazette (Monitorul Oficial) of the Republic of Moldova.
The full text of the decision is available on the website of the Constitutional Court http://www.constcourt.md/
Address: 28 A. Lăpuşneanu Street, CHIŞINĂU, MD-2004 MOLDOVA
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