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The Constitutional Court of Moldova Ruled: Citizens May Enjoy the Right to Initiate Legislative Referendums, Under the Law
On 2 October 2018, the Constitutional Court of Moldova delivered an interpretative judgment on a number of articles of the Constitution, following an application lodged with the Court by a group of MPs, who asked the Court to deliver on the following issues:
1) Are the citizens entitled to initiate nationwide legislative referendums?
2) Should the lack of legal procedural provisions on referendums serve as grounds for a refusal of State authorities to register the citizens' initiative for a nationwide legislative referendum?
3) Is the Constitutional Court entitled to deliver a priori on compliance with the validity conditions of the draft law proposed for the referendum?
The Court's assessment
In context, the Court further noted that Articles 2 para. (1) and 75 of the Constitution allow, by their phrasing, for legislative referendums to be initiated by citizens, which does not contradict international recommendations.
The Court found that citizens' right to initiate a legislative referendum stems from the provisions of the Electoral Code itself, which provides for two rules on the initiation of nationwide referendums by citizens: (1) in case of a constitutional referendum, it may be initiated under Article 141 let. a) para. (1) of the Constitution (i.e. at least 200.000 citizens of Moldova with voting rights from at least half of second level administrative units, and in each of them a number of at least 20.000 signatures supporting the initiative is needed); (2) in case of other types of referendum, including the legislative one, they may be initiated by at least 200.000 citizens of Moldova with voting rights, with no condition imposed on their allocation in administrative units.
However, unlike the initiatives to revise the Constitution by referendum, where under Article 135 para. (1) let. c) of the Constitution, the Court must a priori issue an opinion on the validity of the draft amendment to the Constitution, in the event of a legislative referendum, the Court does not have such a competence.
The Court held that, although citizens enjoy the right to initiate a legislative referendum, the legal framework has several omissions pertaining to the procedure on initiating this type of referendum, including on the review of the formal and substantive validity of the texts subject to the referendum. Having regard to the provisions of Article 72 para. (3) let. b) of the Constitution, the Court emphasised that it is up to the Parliament to regulate clearly the procedure on the initiation of referendums by citizens.
It noted that under Article 60 of the Constitution, the Parliament is the sole legislative authority of the State and that under Article 66 let. b) of the Constitution, the duty to declare referendums lies with the Parliament. Considering the foregoing, as well as that it has at its disposal the necessary legal arsenal on the verification of the validity of the draft laws, until the procedure on initiating legislative referendums is regulated, the competence to verify the validity of the texts subject to the referendum, both under formal and material aspects, rests with the legislator. The Parliament shall thus require for a signing off of the draft law subject to a referendum and for an expert evaluation thereof, under the Law on legislative acts. Therefore, should the Parliament find that the text of the draft subject to a referendum by the citizens is not consistent with the conditions of formal and material validity or should it pose a problem of constitutionality, it may reasonably decline the request to hold the referendum. Further, the Parliament is also conferred the duty to formalise the results of the referendum.
Conclusions of the Court
- The citizens of Moldova shall enjoy the right to hold legislative referendums, under the law;
- Until the procedure on initiating legislative referendums will be regulated, the competence to verify the validity of the texts subject to the referendum, both under formal and material aspects, as well as formalisation of the results thereof, rests with the Parliament.
This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova.
This a courtesy translation of the original text available in Romanian language.
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