The Court Delivered a Judgment Interpreting the Constitution in the Part Related to the Failure of the President to Carry Out Constitutional Duties

The text from below is a summary of the Judgment. The full text in Romanian may be accessed here.

On 17 October 2017, the Constitutional Court of Moldova delivered a judgment interpreting the provisions of Article 98.6 in conjunction with Articles 1, 56, 91, 135 and 140 of the Constitution (Application no. 124b/2017).

Circumstances of the case

The case originated in an application lodged by the Government of the Republic of Moldova with the Constitutional Court asking for the interpretation of Article 98.6 of the Constitution, thereby providing an explanation on the following:

“1) What should be the actions of the PM and of the Parliament of the Republic of Moldova in case the President of the Republic of Moldova repeatedly refuses to swear in a minister?

2) What is the solution for avoiding an institutional deadlock in case the President of the Republic of Moldova infringes the constitutional duty to swear in a minister following the repeated proposal made by the PM, being aware of a potential suspension from office of the Head of State is not possible?

3) Aiming at ensuring national security, is the entry into office possible for a person who has been repeatedly nominated by the PM for the office of Defence Minister, after the expiry of the 14 days period, in case the President of the Republic of Moldova does not issue the Decree? [If yes,] under what conditions?

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

Mr Tudor PANȚÎRU, President, 

Mr Dl Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges. 

Conclusions of the Court

Having examined the materials of the casefile, the Court noted that the complaint mainly refers to the deliberate refusal by the President of the State to execute a part of constitutional duties within the procedure of Government reshuffle, as well as to the defiance towards the Constitution and the judgments of the Constitutional Court, which affects the functionality of the Defence Ministry and of the Government.

Subsequently, the application aims at identifying mechanisms to unlock the functionality of fundamental State institutions and to restore constitutional order in case of its deliberate obstruction by the President of the State within the co-decision procedure or shared competences.

Therefore, the complaint refers to a set of connected elements and principles of constitutional value, such as rule of law, checks and balances, constitutional loyalty, supremacy of the Constitution and the binding nature of the judgments of the Constitutional Court.

In order to elucidate the issues challenged in the complaint, the Court operated, additionally, with the provisions of Articles 1, 56, 91, 135, 140 of the Constitution, its case-law, as well as with general legal principles, making use of all methods of legal interpretation.

The three questions addressed to the Court in order to deliver a solution are interdependent. In this regard, the Court noted that aiming at delivering an answer to the particular issue referring to situations of obstruction by the President of the State of the Government reshuffle there is a need for general mechanisms that would put an end to the situation of unconstitutionality triggered by the deliberate inaction of the President in meeting his constitutional duty.

While examining the case, the Court also considered the experience of Lithuania and Belgium on solving constitutional crises generated by the refusal of the Head of State to promulgate or countersign the laws.

The Court considered it pertinent for this case to take into account elements that point to the exceptional situation which have a weight in delivering the solution.

The institutional deadlock was preceded and accompanied by multiple statements by the President, issued personally or by his entourage, which indicate his intention to block all the institutions that enjoy competences shared with him, including the intention to refuse the promulgation of laws in case of their repeated voting in Parliament, the refusal to swear in judges and ministers, as well as the lack of respect for the Constitution, the Constitutional Court and its judgments.

The Court noted that by the abovementioned public statements, the President puts the Constitutional Court under undue pressure, which are deemed by the Court as an attempt of intimidation.

Such statements, as well as the threats referring to the fact that constitutional judges will be held responsible “at the appropriate time” have determined a vehement reaction by the President of the European Commission for Democracy through Law (Venice Commission).

The Court held that the object of the present complaint is different from the object of the Judgment of the Constitutional Court no. 2 of 24 January 2017 on the interpretation of Article 98 para. (6) of the Constitution by which the Court ruled on the manner of sharing the competences between the President of the Republic of Moldova and the Prime Minister in the framework of the procedure of governmental reshuffle.

The Court noted that, on the contrary, this complaint stems from the non-enforcement of the Judgment no. 2 of 24 January 24 2017.

In the Judgment No. 2 of 24 January 2017 the Court held that, while exercising its power under Article 98 para. (6) of the Constitution, the President of the Republic of Moldova may refuse the proposal advanced by the Prime Minister to appoint a person to a vacant position of minister and may ask him to advance another proposal.

The Court stated that, nevertheless, the political will of the President cannot be a source for institutional deadlocks, on the one hand, and cannot, on the other hand, override the powers of the Prime Minister within the co-decision procedure in the process of governmental reshuffle.

Thus, the Court found that the President of the Republic of Moldova is entitled to verify the compliance of the candidate nominated by the Prime Minister for a position, however he has no right to veto the Prime Minister's proposal (JCC No. 2 of 24 January 2017, §46).

In this context, the Court recalled that its Judgment no. 7 of 4 March 4 2016 focused exclusively on the manner of election of the President of the Republic of Moldova, and not his powers, modified by the same Law, in the meaning of configuring the parliamentary regime of government. Thus, following the adoption of the above-mentioned Judgment, the President of the Republic of Moldova was elected by a universal, equal, direct, secret and free vote expressed by the citizens in a parliamentary republic (JCC No. 34 of 13 December 2016).

The Court underlined that the election of the President by popular vote does not require the need to transform the latter into an opponent of the Parliament. Despite the fact that election of the President by popular vote tends to strengthen his position, in similar constitutional systems presidents elected by popular vote continue to play the role of neutral power and are not empowered with broad competences, while the necessary checks and balances are secured by parliamentarism (JCC No. 24 of 27 July 2017).

In this respect, the Court reiterated that within parliamentary systems the head of state plays the role of a neutral arbitrator or a neutral power, being detached from political parties. Even if no one can prevent the head of state from having his political opinions and sympathy, his mandate is limited. The president is an important element of the political system, but he is not a partisan of politics.

Therefore, within the constitutional architecture of the Republic of Moldova, the President must have a neutral role, an arbitrator and not be a political player. This is not compatible with the logic of the parliamentary regime. The same view is shared by the Venice Commission in the Opinion "Co-operation between the Venice Commission and the Republic of Moldova on Constitutional Reform" (CDL-INF (2001) 003-e) and in the Opinion on the proposal by the President of the Republic to expand the President's powers to dissolve Parliament [CDL-AD(2017)014].

Thus, in case of formation of the Government a tripartite relationship between the designated Prime Minister, the Parliament and the President, as well particular complex procedures inherent to the Government's investiture are in place. The core element of the government's investment in Parliament is its activity program and not the people (ministers), although they are subject to parliamentary scrutiny.

On the contrary, 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 recall of a member of the Government; however, if loses its confidence in the Government, it can make use of the instrument of vote of no confidence against the entire Government.

As a symmetry to the fact that the President has no constitutional power regarding the selection by the appointed candidate for the position of Prime Minister of the members of the government team, consequently the head of state has no power from the constitutional perspective to change the composition of the Government, i.e. in case of reshuffle. The real decision-making power regarding the recall or appointment of a member of the Government belongs exclusively to the Prime Minister. Only the Prime Minister may have an initiative in this respect, and despite the fact that the Constitution provides that the proposal to recall or appoint a member of the Government is addressed to the head of state, the latter cannot refuse it. Consequently, the President's decree on the appointment or recall a member of the Government repeatedly proposed by the executive is a formal act that merely "authenticates" the will of the Prime Minister to make changes in the composition of the government team.

The Court emphasized that the President of the country is not omnipotent and is just under the obligation of constitutional devotion to observe the limits imposed by the Constitution and bears responsibility for the fulfillment of his attributions in good faith.

The Court recalled that taking the oath represents the assumption by the President of the Republic of Moldova of legal commitments towards the people of the Republic of Moldova to act in the spirit of the Constitution, to respect the judgments of the Constitutional Court as a guarantor of the supremacy of the Constitution, to respect democracy and the values ​​of the rule of law. By taking the oath, the President of the Republic of Moldova unconditionally, publicly and solemnly undertakes the obligation to act exclusively in the spirit of loyalty towards the Constitution and not to violate the oath under any circumstances (JCC No. 2 of 24 January 2017).

The Court reiterated that violation of the oath is, on the one hand, a serious violation of the Constitution, and a serious violation of the Constitution is, on the other hand, a violation of the oath. The severity of this violation may raise an issue of incompatibility of the President with his position.

In this context, the Court recalled that the Constitutional Court's interpretative judgments represent texts with constitutional value, and are an integral part of the Constitution, they form common body with the provisions they interpret and shall be mandatorily enforced by all state institutions, including the President. They apply directly, without any other formal condition (JCC No.33 of 10 October 2013).

In this respect any non-compliance with the judgments of the Constitutional Court is equivalent to non-observance of the Constitution and represents gross disregarding of the fundamental elements of the rule of law.

In the present case, the Court found that the institutional deadlock was generated by deliberate actions of the President and by non-enforcement of the earlier judgment of the Constitutional Court.

Therefore, the Court found that the deliberate refusal of the President of the country to fulfill the constitutional duty to appoint the person repeatedly proposed by the Prime Minister represents a serious violation of his constitutional obligations and of the oath, a circumstance that justifies the initiation by the Parliament of the procedures to suspend the President, according to Article 89 of the Constitution.

Concurrently, the Court held that the use of the mechanism to dismiss the President is the choice of the Parliament, taking into account that it is a complex and lasting procedure that fails to promptly address the full functionality of the fundamental institutions which were deliberately obstructed by the President.

The Court held that the Constitution of the Republic of Moldova does not provide express solutions on the manner in which the extraordinary situation created by the deliberate inaction of the President should be handled; as a matter of fact the text of the Constitution is built on the premise of good faith, including the aspect referring to the exercise by public officials of their tasks, as specified in Article 56 of the Constitution.

In this context, the textual interpretation of Article 98 para. (6) could distort the original will of the constituent legislator; as a matter of fact, creation of institutional deadlocks and perpetuation of the power vacuum and of a state of unconstitutionality is contrary to the spirit of the Constitution. Thus, the exceptional situation created by the deliberate refusal of the President to fulfill constitutional duties imposes the need to identify an exceptional solution. Therefore, the Court held that in order to establish the genuine will of the constituent legislator, it is necessary to apply functional interpretation of the Constitution.

Having analyzed the Constitution in its integrality as well as its specific objective to avoid the creation of a power vacuum and to ensure fully functioning institutions (JCC No. 7 of 18 May 2013), there should exist instruments of checks and balances that would exclude any abuses related to the deliberate non-fulfillment of constitutional duties and would provide the necessary guarantee for the full exercise of state power.

In this context the Court, through functional interpretation of the Constitution, had to identify mechanisms to replace the role of the President within these procedures and to unblock the functionality of the fundamental state institutions.

The Court recalled that any interpretation of constitutional provisions derives from the nature, objectives and the spirit of the Constitution itself.

At the same time the Constitution is to be regarded as a "living instrument", which shall be interpreted in light of current social and political realities, so as to guarantee continuous and effective functionality of the institutions.

The Court held that the Constitution cannot be a "suicide pact". Thus, no provision in the Constitution can be interpreted as allowing the deadlock of its institutions. A too restrictive interpretation, greatly limiting the possibilities of restoring the constitutional order, would be a handicap for the functioning of democracy and of the rule of law.

By analysing the Constitution as a whole and its specific objective, which aims to avoid the creation of a power vacuum and to ensure fully functioning institutions, the Court underlined that in the case of institutional deadlocks, when the competences of some institutions are not exercised by persons entitled to represent them, irrespective of the reasons that have caused these deadlocks, the constitutional provisions provide for their replacement by establishing the interim office.

In this context, the Court held that, according to Article 90 (Vacancy of office) of the Constitution:

„(1) The vacancy of office of the President of the Republic of Moldova shall be declared as consequence of expiry of the mandate, resignation, removal from office, permanent impossibility to exercise his/her functional duties or death. […]

(3) The impossibility of the President of the Republic of Moldova to exercise his/her duties for more than 60 days shall be confirmed by the Constitutional Court within 30 days from the date of the submission of application.”

At the same time, Article 91 (Interim office) of the Constitution provides that:

„In the event the office of the President of the Republic of Moldova becomes vacant or the President has been removed, or finds himself/herself in temporary impossibility to execute his/her duties, the interim office shall be ensured, in the given order, by the President of the Parliament or by the Prime Minister.”

The Court held that the Constitution contains rules providing for the temporary or permanent impossibility of continuing to exercise the mandate.

 From the text of Articles 90 and 91 of the Constitution it clearly results that the Supreme Law distinguishes between two different situations of impossibility to exercise the office of President:

(a) temporary impossibility, case in which the President may resume his activity, the interim office shall be instituted without making the position vacant;

(b) permanent impossibility (other than death), a situation in which the President cannot resume his activity for more than 60 days, thus occurring the vacancy of the office and elections for a new President, the interim office being instituted for this period.

 All these situations, provided for both in Article 90 and Article 91 of the Constitution, result in the establishment of the interim office.

The Court held that the Constitution does not specify the hypothesises in which the impossibility may intervene.

 Logically, the temporary impossibility to exercise the office of President is generated by any circumstance incompatible with the exercise of duties other than death.

The Court held that inaction of the presidential institution, by failing to perform its duties either on objective or subjective grounds, by deliberately refusing to exercise its competences, has identical consequences, i.e. the deadlock of other institutions.

In this context, given that, in the case of deliberate refusal to exercise the duties, the consequences are identical to those which arise in the case of impossibility to exercise the duties on objective grounds, the Court held that the solution for these situations must be identical, that is to say, the establishment of the interim office.

 Thus, the Court found that, by deliberately refusing to execute one or more constitutional duties, the President has removed himself from their exercise.

In this context, the Court held that his deliberate inaction constitutes, for the purposes of Article 91 of the Constitution, a temporary impossibility, on subjective grounds (lack of desire), to exercise his competence in question, which justifies the establishment of the interim office in order to ensure the exercise of constitutional duties of the President.

 In this respect, the Court held that, under Article 91 of the Constitution, in the event the President of the Republic of Moldova finds himself/herself in temporary impossibility to execute his/her duties, the interim office shall be ensured, in the given order, by the President of the Parliament or by the Prime Minister.

In accordance with Article 135 para. (1) let. f) of the Constitution, the Constitutional Court is the sole authority competent to ascertain the circumstances justifying the interim office of the President, by issuing an opinion.

In case of deliberate constitutional inaction to carry out the duties, the duration of the impossibility has no occurrence for the establishment of the interim office, unlike the case of objective impossibility when the 60 day term is exceeded, for which the vacancy of the position is ascertained under Article 90 of the Constitution.

 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 para. (1) let. f) of the Constitution, upon the referral of the subjects provided by Article 38 para. (1) and (2) let. c) of the Code of Constitutional Jurisdiction, according to their area of competence.

In this context, the Court recalled that, while carrying out the interim office of the President, the interim President exercises the same competences as the President-in-Office (JCC No 29 of 24 November 2015). Thus, in the given order, the President of the Parliament or the Prime Minister, acting as Interim President, will issue the decrees which failed to be unissued by the holder who deliberately refused to exercise his/her constitutional duties.

Judgement of the Court

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

- For the purposes of Article 91 of the Constitution, the  refusal by the President to execute his/her constitutional duties constitutes a temporary impossibility to exercise his/her power(s) in question and justifies the establishment of the interim office, which is ensured, in the given order, by the President of the Parliament or the Prim-minister, in order to exercise this (these) constitutional duties of the President.

- The establishment of the interim office, caused by the deliberate refusal to execute a constitutional duty and the circumstances justifying the interim office of the President shall be ascertained in each particular case by the Constitutional Court in accordance with the competence assigned to it by Article 135 para. (1) let. f) of the Constitution

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.