Moldova’s Constitutional Court recently decided to wade into the protracted political crisis in the country. With its decision of 4 March 2016, the Court annulled the amendments to Article 78 of the Constitution that were introduced back in 2000. The ‘guardian of the Constitution’ has thus reinstated the constitutional provisions stipulating that the President can be directly elected by citizens, and not by three-fifths of votes by Members of Parliament (or 61 votes out of 101).
The validity of this Court decision has been robustly challenged by representatives of the opposition and by various members of civil society. They claim that by clarifying constitutional provisions the Court clearly overstretched its competences. In their view, when the Court annulled the previous provisions stipulating the election of the President by Parliament it made a political judgment that suited the Democratic Party. The parliamentary majority, led by the Democratic Party and associated with oligarch Vladimir Plahotniuc, welcomed the Court’s decision. The Parliament Speaker, Democrat Andrian Candu, has characterised the Court’s decision as a sign of “political maturity” that would allow for political stability in 2016.
Particularities of the Court’s decision
The Court’s decision constitutes a reply to an appeal submitted by 18 MPs of the Liberal Democrat Party, many of whom are today in opposition to the Democratic Party and whose leader Vlad Filat is still behind bars. The appeal demanded that the Court check the constitutionality of some provisions of Law No. 1115-XIV of 5 July 2000 on the modification and completion of the Constitution, through which the election of the President by the legislative body was introduced.
The appeal that was addressed to the Court demanded the examination of two aspects. On the one hand, it required the Court to pass judgment on the legislative procedures used to amend the Constitution. The question was whether the Court should give its approval each time constitutional draft laws are substantively amended by MPs during each legislative reading. And, on the other hand, the appeal questioned the constitutionalism of the Law of 2000 as such.
The Court confirmed that it has the mandate to follow and be involved when the Constitution is amended in Parliament, and concluded that it had been excluded from the final stages of the legislative process concerning the Law of 2000. As a result, the law adopted in 2000 was different from the draft law approved by the Court. First, the Court proposed a procedure whereby a President would be elected by a simple majority of elected MPs, while the adopted law of 2000 introduced the vote by three-fifths of parliamentarians (Article 78, p. 3). Second, the law of 2000 envisaged early elections and the dissolution of the legislature in the event that the President was not elected (Article 78 p. 4, 5), which was not part of the draft law approved by the Court. The Court explains that the “clause” of early elections was introduced by the legislature in order to put pressure on MPs by forcing them to vote for a President. Finally, the Court stated that the law of 2000 also amended Article 85 of the Constitution, prohibiting the dissolution of the legislature within six months of the end of President’s mandate.
Political aspects of the Court’s decision
The Court claims that the amendments to the Constitution, introduced by the law of 2000, overlooked the approval role of the Court and ultimately provided for a permanent source of political crisis. This included the possibility to call early elections each time a President fails to be elected by MPs.
According to the Court, the Constitutions of other countries allow for limitations on dissolving the parliament, and by so doing they preclude the possibility of permanent political instability. The Court also found that Moldova’s Constitution lacked the procedures to exit this vicious circle if political parties prove unable to compromise over the election of a President.
Moreover, the constitutional amendments introduced by the law of 2000 created a legal situation whereby the Speaker of the Parliament becomes the interim President until a new President is elected and early elections can take place. This resulted in three years and six months of interim presidency during 2009-2012 – almost the whole four years of the standard presidential mandate.
These constitutional incongruities lead to frequent elections. Due to the failure to elect a President three early elections were held, two of which during 2009-2010. In the same period, four attempts to elect a President failed.
The Court stated that the constitutional reform brought about by the law of 2000 caused “imperfect governance”. It emphasised that the root of this problem lay in the lack of final approval by the Constitutional Court when the law was first adopted.
The Court’s conclusion
The greater part of the Court’s judgment refers to the legislative procedure for the revision of the Constitution. The Court concluded that all draft laws aiming to modify the Constitution require approval by the Constitutional Court. The Court’s approval is also necessary if draft constitutional laws are revised during the second reading. So the Court decided to strip the legislature of this competence and invest citizens with the right to vote the President directly. In this way, the Court not only annulled the constitutional modifications decided by the law of 2000, but also the law on the election of the President, thereby enforcing the Electoral Code provisions relating to the direct election of the President.
The Court communicated that its decision did not affect the current President’s mandate (Nicolae Timofti – 2012-2016). Moreover, the Court’s decision does not retroactively annul the acts adopted by the Presidents elected in accordance with the procedure in Parliament (leader of the Party of Communists) Vladimir Voronin - 2001-2009; leader of the Liberal Party, Mihai Ghimpu – 2009-2010; and Democrat leader Marian Lupu – 2010-2012).
Winners and losers
Although the Court reinstated the procedure of direct presidential election by the citizens of Moldova, it left the candidates’ eligibility criteria for election unchanged. The criteria refer to a minimum age eligibility of 40 years, and the obligatory condition of at least ten years’ permanent residence in Moldova.
Opposition leaders have had different reactions to the Court’s decision. Opponents such as Socialist leader Igor Dodon welcomed the Court’s decision, but then proposed to check the decision with the Venice Commission. A more reticent stance was adopted by the Party Civic Platform ‘Truth and Dignity’, whose leader Andrei Năstase dismissed the Court decision by linking it to pressure from protesters and foreign partners of Moldova. But he also endorsed the suggestion that the Court limit the right of persons aged under 40 to stand as a candidate. Similar criticisms came from Maia Sandu, the former Minister of Education and current leader of the up-and-coming ‘Action and Solidarity’ Party (PAS). Sandu and Năstase neither confirmed nor denied their participation in the upcoming presidential elections.
The biggest loser of the revised Constitution is 38 year-old Renato Usatîi, leader of ‘Our Party’, and one of the most popular political leaders of the country, who characterised the decision as a measure against him, used by the Democratic Party and its informal leader, the oligarch Vladimir Plahotniuc.
The major governing Democratic Party is favoured by the new conditions, but their candidacies are rather weak, as are those of the other parliamentary parties (the Liberal Party and the Party of Communists).
Overall, the list of strong competitors for the presidency includes both pro-Russian leaders – Igor Dodon and leaders with pro-EU views - Andrei Năstase, Maia Sandu, Iurie Leancă (Moldovan European People’s Party).
Critics of the Court’s decision raise several issues. First, the fact that the Court took the decision three weeks before the end of the President’s mandate, which would help the current government avoid early elections if a new President fails to be elected. Second, the Court’s decision is linked to signatures collected for a referendum by the Civic Platform Truth and Dignity for a larger revision of the Constitution. The Court decision is seen as a means to demolish the initiative for a referendum. Last but not least, critics of the Court decision believe that is being used to dissipate the burgeoning protest movement in large swathes of society. Moreover, the Court ruling is seen as an attempt to fuel the rivalry between the leaders of the protests – Andrie Năstase, Igor Dodon and Renato Usatîi; the conflicts between the Socialist Dodon and Usatîi ignited shortly after the Court’s decision. Usatîi insinuated that Dodon sealed a deal with oligarch Plahotniuc in a bid to allocate the institutions between pro-Russian Socialists and the so-called pro-EU Democratic Party.
Given that Alexandru Tănase, who was appointed President of the Court in 2011 with a six-year mandate, is associated with oligarch Vladimir Plahotniuc, doubts about the Court’s decision are largely justified. In the past, the Court under Tănase’s presidency was involved in controversial deals related to the constitutionality of Chisinău’s airport concession to a Russian company. So there is a general perception among the public that the Court is politically influenced by the ruling party, namely by the Democratic Party and by oligarch Vladimir Plahotniuc.
At the same time, different external partners, in particular the EU and the Council of Europe (the Venice Commission) suggested that Article 78 of the Constitution requires amendment in order to avoid permanent political instability. The government, which is eager to impress the EU with the implementation of agreed reforms, is helped by the Court’s decision. Good relations with Brussels are crucial to secure financial and technical assistance, but also to restore a minimum of trust on the EU’s side. The government also needs to distract the attention of the protest movement and to channel as many political efforts as possible into the preparation for presidential elections. So the intervention from the Constitutional Court is convenient for the Democratic Party and its allies in the Parliament, who can survive the political crisis by avoiding early elections.
The attempt of the Constitutional Court to close this ‘Pandora’s box’ may result in the opening of new political conflicts in the future. Indeed, the Court’s decision to offer citizens the right to elect a President reflects public polls and the demands of political protest parties. This decision is also in line with the recommendations of external partners. In the current political context, the Court is generally perceived to be more the ‘poodle’ of certain political circles than as an independent watchdog of the Constitution. The Court is therefore not trusted, and neither are its decisions, regardless of their merits.
The Constitution was modified and citizens will vote for their President, but this does not change the parliamentary character of the Republic. Further steps to clarify the competences of the President are needed; indeed, the referendum requested by the Civic Platform Truth and Dignity collected more than 400,000 signatures in this regard. Without this the ‘ghosts’ of the late 90s may return, repeating earlier contradictions between the Presidency and the Parliament. In any event, future referenda should avoid the failure of 2000, when the referendum on the direct election of the President was declared invalid because the participation threshold of 33% was not reached.
 Decision of the Constitutional Court of 4 March 2016 restoring the right of citizens to vote the president directly (www.constcourt.md/libview.php?l=ro&idc=7&id=759&t=/Prezentare-generala/Serviciul-de-presa/Noutati/Curtea-Constitutionala-a-restabilit-dreptul-cetatenilor-de-a-si-alege-Presedintele).