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13.04
2020

Procedure for responsibility assumption by the Government

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On 13 April 2020, the Constitutional Court delivered a Judgement to review the constitutionality of some provisions of Law no. 56 of 2 April 2020 on the establishment of measures to support citizens and entrepreneurial activity during the state of emergency and on the amendment of some normative acts (Judgement no. 10 of 13.04.2020).

The authors of the application, MPs of the Republic of Moldova, claimed that the procedure for responsibility assumption by the Government from 2 April 2020 was flawed, because the parliamentary session did not take place due to lack of quorum and the Government did not present the draft law to the Parliament. They also mentioned that the impugned provisions of Law no. 56 of 2 April 2020, for which the Government has assumed responsibility, do not meet the requirements established by the Decision of the Constitutional Court no. 5 of 2 March 2016. Therefore, the authors invoked the unconstitutionality of the impugned rules in relation to the provisions of Articles 60 and 1061 of the Constitution.

Regarding the partial challenging of Law no. 56 of 2 April 2020, the Court held that the authors’ arguments refer to the violation of the procedure for responsibility assumption by the government for the Law in question. These arguments are valid not only for the impugned provisions, but also for the entire Law no. 56 of 2 April 2020, because an alleged violation of the procedure for responsibility assumption by the Government has effects on the entire Law. Therefore, the Court considered it necessary to examine the constitutionality of Law no. 56 of 2 April 2020 in full.

Regarding the adoption of Law no. 56 of 2 April 2020 in accordance with the procedure for responsibility assumption by the Government, as provided by Article 1061 of the Constitution, and regarding the conformity of the procedure for adopting the Law in question with the principle of separation and cooperation of powers in the State, as required by Article 6 of the Constitution, the Court noted the following.

The Court held that the provisions of Article 1061 of the Constitution highlight four stages of the procedure for responsibility assumption by the Government.

In the first stage, the Government must adopt a decision to assume responsibility for a program, a general policy statement or a draft law. In this context, the Court noted that the Government must publish in the Official Gazette both the decision to assume responsibility and the full text of the draft laws that are the subject of this procedure (JCC no. 28 of 22 December 2011, § 66; DCC no. 77 of 12 October 2016, § 29).

In the second stage, the Government representative must present the program, the general policy statement or the draft law before the Parliament. The text “before the Parliament” from Article 1061 para. (1) of the Constitution presupposes the presentation of the document for which the Government has assumed responsibility, in the plenary session of the Parliament. The stage of presenting the Government's initiative before the Parliament is central and indispensable to the procedure for responsibility assumption, because from the end of the presentation the term of three days for filing a motion of censure against the Government begins to run, and in the absence of the motion, the term for acquiring the nature of "adopted" in the case of draft laws or "mandatory" in the case of the general policy program or statement.

The third stage is reserved for the possibility to file a motion of censure. The Court noted that the motion of censure is the main instrument for exercising parliamentary control in the context of responsibility assumption by the Government. The Constitution allows the Government to assume responsibility before the Parliament, provided that after the presentation of the decision to assume responsibility in the plenary of the Parliament, the MPs have the possibility to file a motion of censure. It results from Article 1061 para. (2) of the Constitution that the motion of censure may be filed within three days after the presentation to the Parliament of the program, the general policy statement or the draft law by the Government representative. The three-day time limit for filing the motion begins to run from the moment of presentation in the plenary of the draft law for which the Government assumes responsibility (JCC no. 25 of 29 October 2019, § 62; HCC no. 28 of 22 December 2011, § 57). Therefore, if the Government has not presented, de facto, the decision by which it assumes responsibility before the Parliament, the motion of censure cannot be filed. Therefore, this stage depends entirely on the completion of the previous stage.

For the fourth stage, the Constitution provides for two scenarios. The first case concerns the situation in which the parliamentarians filed a motion of censure which was voted by the majority of the elected MPs. In this case, Article 1061 para. (2) of the Constitution provides that the Government is dismissed. The second case concerns the situation in which no motion of censure was filed or in which the motion failed for various reasons. In this case, Article 1061 para. (3) of the Constitution stipulates that the presented draft law is considered adopted, and the program or general policy statement becomes mandatory for the Government.

The Court noted that compliance with the constitutional procedures for responsibility assumption by the Government presupposes the gradual fulfillment of the above-mentioned steps.

The Court noted that the authors of the applications invoked the fact that when the Government assumed responsibility for Law no. 56 of 2 April 2020, the second stage was not observed, which provides the obligation to present the draft law before the Parliament.

On the one hand, the Court found that by Decision no. 213 of 1 April 2020, the Government initiated the procedure to assume responsibility for the draft law. It was registered in the Secretariat of the Parliament and on the day the Parliament was convened, the Prime Minister of the Republic of Moldova was in the meeting room of the legislature, prepared to present the draft law to the MPs. Thus, the Court considered that the Government had taken all the necessary actions to be able to present the draft law before the Parliament, as required by Article 1061 para. (1) of the Constitution.

On the other hand, the Court noted that the Parliament was convened in a plenary session, but the presentation of the draft law by the Government representative before the Parliament was not possible, because the session was not deliberative.

First, the Court held that Law no. 56 of 2 April 2020 was considered adopted by the Parliament even though the plenary sitting of the Parliament of 2 April 2020 failed. The Court reiterated that the three-day time limit in Article 1061 para. (2) of the Constitution runs from the date of presentation of the draft law before the Parliament and this term is established for filing a motion of censure and, implicitly, for acquiring the nature of “adopted text” of draft laws in the event no motion was filed within this term. This time limit does not start to run until the de facto presentation of the draft law in the Parliament's plenary session. Therefore, the Parliament could convene a new plenary session so that the Government could present the draft law in the context of responsibility assumption. In this case, the Court noted that the procedure in question had not taken place. The Court noted that, in the present case, the failure to meet the required quorum was a failed attempt at responsibility assumption by the Government for a draft law before Parliament.

Second, the text “before the Parliament” in Article 1061 para. (1) of the Constitution presupposes that the draft law for which the Government has assumed responsibility must be presented in the plenary session of the Parliament. In the present case, the draft law for which the Government has assumed responsibility was not presented in the plenary session of the Parliament. In this regard, the Court reiterated its case-law, noting that the failure to present the political act of responsibility assumption in a plenary session does not meet the constitutional requirements for assuming responsibility “before” the Parliament (JCC No. 25 of 29 October 2019, § 62; JCC No. 28 of 22 December 2011, § 56).

The Court noted that the Constitution does not establish any exception to the obligation to present the assumption of responsibility for a draft law in the plenary session. The holding of the plenary session is also mandatory if the Parliament is not in ordinary session, outside the parliamentary sessions the procedure for responsibility assumption by the Government is conditioned by the convening of an extraordinary or special session (JCC no. 25 of 29 October 2019, § 62; HCC no. 28 of 22 December 2011, § 57). A fortiori, the presentation of the draft law is mandatory when the Parliament is in ordinary session. This also applies if the state of emergency is declared. The Court notes that the Fundamental Law expressly prohibits, in Article 85 para. (4), the dissolution of the Parliament during the state of emergency, this being one of the constitutional guarantees of parliamentary control over the executive in exceptional situations. In the view of the Venice Commission, the Parliament exercises a very important control over the implementation of the state of emergency, which would cease if the Parliament were dissolved (Opinion no. 838/2016, CDL-AD(2016)006, § 64).

Third, the Court held that given the fact that the plenary session had not taken place and that the Government had not been given the opportunity to present the draft law before the Parliament, the legislative made it impossible to file a motion of censure within such an exceptional procedure. As a result, the Parliament has made it impossible to exercise a parliamentary control over the procedure for responsibility assumption. The Court reiterated that the procedure for responsibility assumption by the Government does not exclude and cannot be used to exclude parliamentary control by initiating a motion of censure (JCC no. 28 of 22 December 2011, § 58). The Court noted that the possibility to file a motion of censure is the main instrument for exercising parliamentary control in the context of responsibility assumption by the Government, which the Parliament cannot waive by not granting the Government the opportunity to assume responsibility in a plenary session.

In the light of its previous case-law, the Court reiterated that the assumption of responsibility by the Government cannot prevent the Parliament from exercising its role as the sole legislative authority, because the procedure for responsibility assumption by the Government takes place before the Parliament and is carried out under its supervision and control (JCC no. 25 of 29 October 2019, § 63; HCC no. 5 of 2 March 2016, § 29; HCC no. 11 of 13 May 2015, § 56). Accepting the idea that the Government can assume responsibility for a draft law at its discretion, at any time and under any conditions, would be equivalent to transforming this authority into a public legislative authority, competing with the Parliament (JCC no. 25 of October 29, 2019, § 58; JCC No. 11 of 13 May 2015, § 57).

Therefore, the Court found Law no. 56 of 2 April 2020 on the establishment of measures to support citizens and entrepreneurial activity during the state of emergency and on the amendment of some normative acts unconstitutional, as it was adopted in violation of the constitutional procedures and contrary to Articles 6 and 1061 of the Constitution.

 

 
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