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Recognition of Parliament Right to Establish the Amount of the Salary of the Members of the Parliament
Issued by the Press Service of the Constitutional Court
Recognition of the Parliament Right to Establish the Amount of the Salary of the Members of the Parliament
On July 12, 2012, the Constitutional Court made a ruling on constitutionality review of certain provisions on the status of the Member of the Parliament (Complaint no. 7a/2012). The decision was sent to Official Gazette in order to be published.
Circumstances of the case
The complaint was reviewed by the Constitutional Court, composed of:
Alexandru TĂNASE, president,
Mr. Victor PUŞCAŞ, reporting judge,
Mr. Dumitru PULBERE,
Mr. Petru RAILEAN,
Ms Elena SAFALERU,
Ms Valeria ŞTERBEŢ, judges
Having heard the parties' arguments, the Court held that the rules of Articles 64, 66 and 72 para. (3). c) of the Constitution authorized the Parliament to regulate the organization and functioning of the legislature, and included its right to establish the amount of the salary of the Members of the Parliament based on several criteria, such as participation in legislative work, participation in delegations, commissions etc.
The Court noted that there was no rule in the Constitution that would prohibit deductions from salaries of the MPs if they were absent from parliamentary sessions or meetings of its specialized committees.
The Court held that deprivation of MP of salary payments for unauthorized absence from Parliament plenary sessions and meetings of specialized committees was not a political penalty as part of the mandate, but was a component of labor relations.
At the same time, the Court reiterated that a distinction should be made between unjustified absences and parliamentary protest, in accordance with Decision No. 8 of June 19, 2012 on the interpretation of Articles 68 para. (1), (2) and 69 para. (2 ) of the Constitution.
In this context, the Court held that the politically motivated absence should not allow the majority to deprive the MP of his/her mandate, but it did not mean that such absence could not generate differentiated salaries of the Members of the Parliament depending on the time actually spent on the legislative activity.
Therefore, the Court held that the Parliament had a wide discretion on legislative solutions concerning MPs salary and regulations challenged under Article 131 of the Rules of the Parliament, which provided for a percentage of wage loss for repeated unauthorized absence, were issues of opportunity. The Court lacks jurisdiction to rule on issues of opportunity, so that in this part of the complaint, the trial was stopped.
Since the provisions of Article 131 of the Rules of the Parliament are issues of opportunity, the Court did not review additionally the challenged provisions in terms of infringement of the right to work and property rights, guaranteed by Articles 43 and 46 of the Constitution.
In this context, the Court held that under Article 16 para. (4) of the Law on the Status of Members of Parliament, to be substantiated, the absence of a MP from a Parliament session as a protest against a bill included on the agenda should be announced by the president of the faction or by the independent MPs.
The Court also held that the obligation to obtain the consent from the Chairman of the fraction to express the protest was contrary to the principles of representative mandate and void imperative mandate, enshrined in Article 68 of the Constitution and conclusions stated by the Constitutional Court in Case No. 8 of 19 June 2012 .
Equally, by Decision no. 10 of July 12, 2012 the Court found that limiting parliamentary protest only to bills included in the agenda was contrary to interpretation by the Constitutional Court stated in Case No. 8 of June 19, 2012, that parliamentary protests could be conducted within the political activity of the MP which was not directly linked to the process of lawmaking.
Also, the Court considered unjustified the differentiation of members of the parliamentary factions and those unaffiliated with regard to the declaration of parliamentary protest.
At the same time, the Court delivered an appeal to the Parliament, signaling the right to bring the legal provisions on parliamentary protest in accordance with Decision no. 8 of June 19, 2012. The results of this review will be communicated to the Court within 3 months.
Decision of the Court
Based on the above arguments, the Constitutional Court declared unconstitutional the words "President of the faction or by" and "unaffiliated" in paragraph (4) of Article 16 of the Law no. 39-XIII of April 7, 1994 on the Status of Members of Parliament, as amended by the Law no. 26 of March 1, 2012 amending and supplementing certain acts. Also, the Court stopped the constitutionality review of Article 131 of the Rules of the Parliament and recognized the other challenged provisions as constitutional. The ruling is final, cannot be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova