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29.12
2015

Designation of Mr Ion Sturza as candidate for the office of PM - constitutional

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On 29 December 2015, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Presidential Decree no. 1877-VII of 21 December 2015 on designating the candidate for the office of Prime Minister and gave an interpretation of Article 98.1 of the Constitution (Complaint 59a/2015).

Circumstances of the case

The case originated in a complaint lodged with the Constitutional Court on 28 December 2015 by a group of 14 MPs.

The authors requested the annulment of the Presidential Decree no. 1877-VII of 21 December 2015 on designating the candidate for the office of PM, since it was issued without consultation of all parliamentary fractions, contrary to the requirements of Article 98.1 of the Constitution.

The authors of the complaint requested the Constitutional Court   to explain the following, when interpreting Article 98.1 of the Constitution:

"1. How should be understood the phrase "consultation of parliamentary fractions"?

2. Is the right of the President to designate a candidate for the office of PM, regardless of the existence or absence of a parliamentary majority, a discretionary one?

3. Is the Head of State under the obligation, within the consultation process, to take into account the existence of a parliamentary majority willing to support a candidate for the office of PM?

4. Is the President under the obligation to hold consultations only with fractions or also with parliamentary groups of unaffiliated MPs?"

On 29 December 2015, the complaint was supplemented, the authors requesting additionally the Court to explain whether:

5. "The President of the Republic of Moldova must designate a candidate or one of the candidates proposed by the majority parliamentary fraction(s) within consultations who will presumably be given a vote of confidence?"

The Constitutional Court ruled on the application 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

Hearing the arguments of the parties and having examined the case-files, the Court held that according to the provisions of Art. 98.1 of the Constitution, following consultations of parliamentary fractions, the President of the Republic of Moldova designates a candidate for the office of PM.

The Court stated that, within the meaning of Article 98.1, the duty of the President to propose the candidate for the office of PM is a constitutional duty.

The Court held that Article 98.1 shall be interpreted taking into account the parliamentary form of government of the Republic of Moldova. In this respect, any interpretation shall be made complying with the balance of state powers as well as with the institutional architecture of the state, and the President shall act in the spirit of constitutional loyalty.

The Court underscored that the President of the Republic of Moldova is the emanation of parliamentary majority and this fact does not allow the President to ignore a possible constitution of an absolute majority of MPs. This rationale is particularly relevant in the situation when failure to accept by the parliamentary majority of the candidate proposed by the President results in a sanction applied to the Parliament, i.e. its dissolution by the President (Articles 85.1 and 85.2 of the Constitution).

The Court reiterated its well-established jurisprudence on the distinction to be made with regards to the legal status of the President of the Republic of Moldova prior to and following the constitutional reform introduced by the Law no. 1115-XIV of 5 July 2000 (Judgment of the Constitutional Court no. 17 of 12 July 2010, Judgment of the Constitutional Court no. 30 of 1 October 2013):

 "In line with Art. 1.2 of the Constitution, the form of government of the State is the republic. According to legal theories, the proceedings employed to elect the Head of State determine the form of Government: parliamentary republic or presidential republic; this fact places the Head of State on a certain position in relation to the Parliament and, particularly, in relation to the people.

In a presidential republic the Head of State is elected directly by the citizens and, from a legal perspective, is placed on the same level with Parliament, enjoying wider competences due to the fact that this mandate is granted by the entire nation, by the people.

In a parliamentary republic the Head of State is elected by the Parliament and given this fact the legal position of the Head of State is lower then and is subordinated to the Parliament.  [...]

Given the above mentioned arguments the Court notes that prior to 5 July 2000, according to Article 78 of the Constitution, the President of the Republic of Moldova was being elected by the citizens and from the point of view of representativity this position was on the similar level with the position of the legislative authority, enjoying a wide range of competences. The President was enjoying the right to initiate the Constitution's amendment (Article 141.1.c), to designate the candidate for the position of the Prime Minister without consultation with parliamentary fractions (Article 98.1), to take part in Government's sittings, to chair the Government sittings he was attending, to consult the Government in matters of urgency or particular importance (Article 83 of the Constitution) etc.

The second period of constitutional development, according to legal theory, corresponds to the characteristics of a parliamentary republic, where the President enjoys more limited competences. Any modification of the form of government imposes a different legal status of the presidential decrees and, accordingly, of other scope (fields) of regulation.

By the Law no.1115-XIV of 05 July 2000 the legislator amended Article 78 of the Constitution and vested the Parliament with the competence to elect the President of the State. As a result of these amendments, the legal position of the Head of State became lower than the Parliament; concurrently, the President lost a number of the above mentioned competences [...]

The Constitutional Court considers that within a parliamentary republic where the status of the Head of State is placed below the status of the Parliament, the President shall exercise the function of guarantor of national sovereignty, independence, of unity and territorial integrity of the State being guided by constitutional provisions regulating the duties of the President, as well as by the acts adopted by the supreme representative body of the given fields."

Applying to the present case the above mentioned principles, the Court held that in order to secure his/her constitutional powers to propose the candidate for the office of PM, the President of the Republic of Moldova, elected by a parliamentary majority, shall ensure, by consultations with parliamentary fractions, both the support of the parliamentary majority and the possible constructive cooperation with the opposition.

In this context, the Court cannot accept the claim of the authors, that the President of the Republic of Moldova is bound to designate the candidate or one of the candidates proposed by the majority parliamentary fraction(s) within consultations who will presumably be given a vote of confidence. In this matter, the Court ruled earlier, holding that "the phrase "parliamentary majority" means an absolute majority of elected MPs, who, under constitutional provisions, may give a vote of confidence to the Government and the PM designated by the President of the Republic" (Judgment no. 21 of 2 July 1998).

Thus, in case of an absolute parliamentary majority being forged, the President of the Republic of Moldova designates the candidate supported by this majority. The parliamentary majority shall be formalised, not only declared, by indicating the constituent MPs, specifying the willingness to support a given candidate for the office of PM and notifying officially the President of the Republic of Moldova.

Only in the case when an absolute parliamentary majority is not forged, the President of the Republic of Moldova is under the obligation, following consultations with parliamentary fractions, to designate a candidate for the office of PM, even when the fractions do not agree with his/her proposal. In a constitutional sense, the phrase „consultations with parliamentary fractions" includes the groups of unaffiliated MPs.

In respect of the constitutionality of challenged Decree, the Court held that considering there was no majority forged in Parliament till the date of issuing the Decree no. 1877-VII of 21 December 2015, the President acted in line with his constitutional duties, designating a candidate for the office of PM, even his proposal had not been agreed by parliamentary fractions.

In this context, omitting to consult a parliamentary fraction/group or the refusal of a faction to support a candidature does not annul President's duty to propose a candidate for the office of PM.

Hence, although the President omitted to consult in advance one of parliamentary groups, its MPs maintain their right to express their attitude on the candidate proposed in Parliament's plenary session, by a decisive vote.

Given these conditions, although not consulting in advance parliamentary fractions/groups constitutes an omission in the process of designating a candidate for the office of PM, in this case it does not affect the essence of the right of fraction's/group's MPs to express their attitude on the proposed candidate by the President of the Republic of Moldova by their vote in Parliament's plenary session.

For these reasons, the Court dismissed as ungrounded the complaint and declared constitutional The Decree of the President of the Republic of Moldova no. 1877-VII of 21 December 2015 on designating a candidate for the office of PM.


Judgment of the Court

Stemming from the above reasoning, Constitutional Court held that, for the purpose of Article 98.1, in conjunction with Articles 98.3 and 78.1 of Constitution, President's duty to propose a candidate for the office of PM is a constitutional duty, being elected by a majority of MPs, shall ensure the support of both parliamentary majority and a possible constructive cooperation of minority from the opposition, following consultations of parliamentary fractions. Therefore, when there is no absolute parliamentary majority forged, the President of the Republic of Moldova is under the duty, following consultation with parliamentary fractions, to designate a candidate for the office of Prime Minister, even parliamentary fractions do not agree with President's proposal. Under a constitutional sense, the notion "consultation with parliamentary fractions" includes the groups of unaffiliated MPs. Also, in case there is forged an absolute parliamentary majority, the President of the Republic of Moldova designates the candidate supported by this majority. The parliamentary majority shall be formalised, not only declared, indicating the MPs who constitute it and sending an official notification to the President of the Republic of Moldova, specifying the availability to support a certain candidature for the office of Prime Minister.

The Court dismissed as ungrounded the complaint and declared constitutional The Decree of the President of the Republic of Moldova no. 1877-VII of 21 December 2015 on designating a candidate for the office of PM.

The Judgment of the Constitutional Court is final, cannot be appealed, enters into force upon adoption and is published in the Official Journal.

A partially dissenting Opinion to this Judgment has been delivered, as well as an Address for the Parliament, aiming at regulating formalisation of parliamentary majority and the procedure on notifying the President. 

The original version in Romanian language of this press-release is available here.

 
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