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Parliament dissolution shall be effected in case of failure to form the Government, even if this period falls under the last 6 months of President’s term of office
On 24 November 2015, the Constitutional Court delivered its judgment on the interpretation of Article 85 of the Constitution.
Circumstances of the case
The case originated in the application lodged with the Constitutional Court on 6 November 2015, by MPs Igor Dodon, Corneliu Furculiță and Adrian Lebedinschi.
The authors requested the Constitutional Court to give an interpretation to the provisions of Article 85 of the Constitution, in the following aspects:
(1) What are the consequences in case of expiry of the constitutional 3 month term under which, for various reasons, a new Government is sworn in by the Parliament, this period falling within the last 6 months of term of office of the President of the Republic of Moldova?
(2) In particular, in such a case, what would be the procedure and the term for Parliament's dissolution?
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Tudor PANȚÎRU,
Mr Victor POPA, judges
Conclusions of the Court
Examining the case-files, the Court noted that the application is mainly focused on the possibility of dissolving the Parliament in the last 6 months of office of the President, in the event that a Government was not sworn in.
In this context, the Court noted that it previously held that following the expiry of the 3 month term, the President of the Republic of Moldova is under the duty to dissolve the Parliament, if the latter failed to form the Government.
The Court found that the imperative of this duty derives from the fact that, unlike the exercise of interim office of President of the country, where the interim president shall exercise the same duties as an acting president, the mandate of the interim Government is restricted to duties covering the area of "administration of public affairs." In this context, the Court reiterated that, by definition, permanentisation of interim governance is contrary to the spirit of the Constitution and poses a threat to parliamentary democracy.
Thus, following the expiry of the 3 month term, the dissolution of the Parliament shall be imminent, and the Parliament shall enjoy no right to other attempts for forming a Government.
Following these considerations, the Court held that the eventual postponement of the dissolution of the Parliament till the expiry of the term of office of the President of the Republic - provided that its dissolution following the expiry of the term of 3 months becomes certain already - has no reason and would not help resolving and unblocking the institutional crisis. On the contrary, since it may lead to maintaining in power for a period of six months an interim government, which operates under extremely limited scope, delaying the dissolution of the Parliament, under the condition that it no longer enjoys the right to form a plenipotentiary Government, this leads to irrational prolongement and aggravation of institutional crisis.
Furthermore, the Constitutional Court underscored that in a parliamentary republic, given that both the President of the country and the Government are authorities that constitute the emanation of the Parliament, the expiry of term of office of the President cannot block the resolution of the institutional crisis by dissolution of the Parliament, when the supreme legislative and representative body can no longer exercise its duties.
Furthermore, the Court noted that the prohibition to dissolve the Parliament in the last 6 months of the term of office of the President of the Republic of Moldova is a reminiscence of the period when the President of the Republic of Moldova was being elected by way of universal, direct, secret and freely expressed ballot. Thus, the reasoning of this restriction derives from the necessity to preserve continuity of state structures in the period of electoral campaign, as well as from the necessity to avoid overlaps of electoral campaigns for parliamentary elections with Presidential elections, in case both electoral exercises are held in the same manner of voting - by way of universal, direct, secret and freely expressed ballot.
The Court noted that such a prohibition is typical of systems where the President is elected by popular vote and is inappropriate for parliamentary systems, where the President is elected by the Parliament. This prohibition has no functional justification in cases where the President of the country is elected by the Parliament, since a priori these elections cannot overlap.
Weighing these two provisions - dissolution of the Parliament in case of failure to form the Government within 3 months [Article 85.1] and the prohibition on dissolving Parliament within the last 6 months of the term of office of the President of the Republic of Moldova [Article 85.2] - the Court held that, by way of functional interpretation, priority is granted to the provision which allows for the restoration of Government's full operationality.
Stemming from the aforementioned reasoning, the Court held that the time limit provided for by Article 85.4 is not applicable in the situation where the Parliament does not sworn in a Government within three months.
Therefore, the Parliament shall be dissolved in case of failure to form the Government within the 3 month term, even if this period falls under the last 6 months of the term of office of the President of the Republic of Moldova.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court held that for the purposes of Articles 85.1, 85.4 and 103.2 of the Constitution, the impossibility to form the Government within 3 months leads to the dissolution of the Parliament even if this period falls under the last 6 months of the term of office of the President of the Republic of Moldova.
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.
This press-release is also available in Romanian.