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Legal Commentaries

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Activity of Parliament during 14-18 July 2003
22 July 2003

As a rule, the laws adopted in emergency regime at the end of winter and summer sessions are flawed and are later disputed in the Constitutional Court. This time too it seems that certain adopted laws could be regarded as imperfect, and a few of the many drafts examined by the deputies during the sessions covered here are likely to prove troublesome in the near future.

I. Law on the Normative Acts of the Government and Other Public Authorities

ADEPT comment: The adopted law is intended to establish the rules of proposing, drafting, examining, expertise, editing and issuing of normative acts subordinate to laws, except for individual and political acts as well as those that do not include legal norms. A series of principles is to guide the drafting of normative acts, such as coherence and subordination to laws, succession and balance of regulations, scientific foundation, transparency, publicity and accessibility etc.

Among the conditions that a normative act is to meet are the following: correlation with the superior juridical act, defence of legitimate rights, freedoms and interests of physical and legal entities, respect for the requirements of the legislative technique and the norms of literary language.

According to the law, the normative acts will be hierarchically organised into: Government decrees and decisions, normative acts of the central public administration, normative acts of the territorial autonomous units with special status, normative acts of the first and second tier local public administration authorities.

A special chapter in the law is dedicated to the application of normative acts in the time and space and on the people concerned. Thus, it is stipulated that the normative act is to apply onto all individuals residing on the territory of the state (territorial administrative entity) for a limitless period of time (if the text of the act does not provide otherwise) and with no retroactive affect (it will not have legal binding on past events).

The effect of the normative act will terminate when it is abrogated or declared null through a final court decision, expires, is consumed or has become inapplicable.

The law also includes provisions with regard to the procedure of proposing and drafting normative acts, the method of preparing drafts, the technical, organisational and financial support for the process of drafting, the definition of concepts and notions, the argumentation of the draft, the juridical expertise and co-ordination with interested bodies, the Centre for Legislative Creation and the Justice Ministry, the file of the draft normative act etc.

The general objective of the law is to introduce clear regulations on the procedure of proposing and drafting normative acts to ensure maximum transparency and prevent the promotion of lobby or departmental interests which do not meet the general interests of the society.

At the end of 2001, the Parliament adopted the Law on Legislative Acts, which had the same objectives and tasks. However, an analysis of the process of law drafting over the past year does not reveal a considerable improvement; it is still a far from transparent process and there are often insufficient arguments for the drafts. This can be explained to a great extent by the fact that the parliamentary majority has to accept the drafts submitted by the Government as they are part of the policy promoted by the majority and the economic, social, environmental and other kind of expertise are not always carried out since they might come out unfavourable for the said drafts. On the other hand, the deputies submit and promote draft laws that do not correspond to the above norms because they do not have the skills and knowledge to carry out all required expertise and arguments established via laws.

II. The Code of Railway Transports

ADEPT comment: Compared to the debates in the first reading, upon the final approval of the Code the debates were more than heated. The deputies presented a number of proposals on improving the text, as well as amendments to abolish the provisions likely to affect the rights of citizens or result into additional costs for the travellers.

In particular, the most heated debates were caused by the requirement banning the access to the departure area of people other than the ticket holders. On the basis of a series of economic, juridical and even moral arguments, this provision was excluded from the draft, to the disappointment of the authors.

Another important provision that was introduced is one providing for the patrimony of enterprises and organisations involved in railway transports to be public property.

The adoption of an organic law in the field of railway transports is timely and welcome given that at present the field functions according to a regulation adopted several dozens of years ago and which is inapplicable under the current market conditions even if the enterprise retains its public enterprise status.

Likewise, the lack of clear regulations has created leeway for abuses by the bosses of railway transports and satellite enterprises have been created over the years harnessing considerable revenues that should normally belong to the state.

III. Law on the Declaration of the Winemaking Factory in Cricova as National Cultural Patrimony

ADEPT comment: The main objective of this law is to protect the site and remove it from the list of enterprises liable for privatisation. On the other hand, the international financial bodies have requested the inclusion of the factory in the list of enterprises to be privatised as one of the conditions for resuming foreign funding to Moldova. Until the adoption of the law no information has been published that the IMF and the WB have given up this condition.

The adoption of this law without preliminarily consulting the foreign funders can be explained in a number of ways:

  • the rulers are certain that the funding will not be resumed anyway (but then it is not clear why they did adopt and promulgate the Law on Inspection before Expedition);
  • the rulers hope that they will persuade the crediting bodies that the Cricova factory needs to be declared a site of national cultural patrimony and protected as such (although earlier the World Bank had made public its position on this issue and dismissed the Government's arguments as not convincing enough);
  • the rulers hope that on the eve of the vacation time this decision will go unnoticed and in the autumn, when the IMF is to examine the resumption of funding to Moldova, the issue of Moldova's relations with the WB will not be considered (this lass supposition seems to be the most credible one, but it could also be the most truthful one).

IV. Law on the Ratification of the European Convention on the Recognition and Execution of Decisions on the Surveillance of Children

ADEPT comment: This Convention was concluded by the Council of Europe Member States in 1980 and is intended to ensure the protection of surveillance and assistance in re-establishing state assistance to parentless children.

V. Law on Amending the Law on the National Commission on Mobile Assets

ADEPT comment: According to the amendments, the Commission will be fully funded from extra-budgetary means, formed from a series of taxes and payments, such as:

  • 0.5 of the amount of mobile asset issues;
  • 0.5 of the amount of sale-purchase transactions with mobile assets on the market outside the stock exchange;
  • 0.1 of the value of auction transactions on the stock exchange market;
  • fees for authorisations, certifications, approvals, registration and permits issues by the Commission;
  • fees for licences issued by the Commission etc.

It is envisioned that the Commission budget will be approved by the Parliament, following the preliminary approval by the relevant permanent commission.

VI. Draft Law on the Evaluation and Accreditation of Units of Research and Development, adopted in the first reading

ADEPT comment: The draft proposes to stimulate the research and development activities and the ones that increase scientific and technological competitiveness. A research and development unit is defined as any institute, centre, scientific laboratory or other entity specified as institution of research and development.

The evaluation criteria will consist in assessing the correspondence between the priority directions of research and development and the contribution of the respective institution to the national economy.

Allegedly, after a period of five years of the adoption of this law, only the accredited research and development institutions will be eligible for state subsidies and other facilities.

One provision likely to cause problems is the one whereby the activity of the accreditation commission and of its secretariat is to be financed from the means transferred by the research and development institutions subject to accreditation (the state ones - from the state budget, the private ones - from their own sources). It is difficult to say which will be the costs of accreditation and certification. What is sure, though, is that the private institutions will protest against the requirement to pay additional fees, since they believe that the state is the one that has to cover the expenses related to the measures that it itself proposes and carries out.

Earlier, the Parliament adopted a decision which obliged the executive to determine the scientific domains that are to be supported by the state and the new draft law fits the state policy in the scientific field, which is to reduce the funding to those scientific institutions that do not have an essential contribution to the economic development and do not have tangible outputs. On the other hand, reducing the funding to fields that do not deliver tangible outputs could result in their disappearance in the long term.

VII. Draft Law on Cancelling the Debts of Theatre and Concert Institutions

ADEPT comment: The draft proposes to cancel the payments to the budget, penalties and financial sanctions that are to be paid by a number of theatre and concert institutions subordinated to the Ministry of Culture, such as the Chisinau Circus, the National Theatre of Opera and Ballet, the National Philharmonics etc.

The total amount of exemptions is estimated at 3.5 million lei and they will allow the exempted institutions to carry out their activity without running the risk of being suspended for failure to pay off debts. On the other hand, the respective institutions have considerable debts towards a series of service providers (for electricity, water, sewerage etc.), that are not as tolerant as the state, and therefore the theatre and concert institutions have yet to cope with their financial problems.

Most of these institutions have rented out parts of their premises and they could use these revenues for paying their bills. Otherwise, one can assume that the relations between these institutions and their rentees are not fair and in the interest of the state, which still has to make a lot of concessions.

VIII. Draft Law on the Amendment of the Law on the Status of the Local Elected Officers, adopted in the first reading

ADEPT comment: The draft is intended to bring the said law in line with the new Law on Local Public Administration. In particular, the amendments envisage changing the definition of the local elected officer, the incompatibilities and restrictions in exercising the mandate of local elected officers, the procedure of control of legality of the acts of the local public administration etc. A series of provisions refer to the social guarantees to be provided to former mayors and local elected officer who held leadership posts in county councils and district executive committees.






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