|Points of view
Illegal visas to maintain legality
Sergiu Grosu, April 15, 2009
At its sitting of April 8, 2009, immediately after the verbal instruction of the outgoing Moldovan President was made public, the Government adopted Decision no. 269 on imposing visa regime with Romania. The decision was adopted "in connection with the events taking place in the country during these days, which jeopardize the constitutional order, actions condemned by UN, the Council of Europe, the OSCE, and by a series of other states, in order to defend the legal status, to re-establish and maintain the state of legality." According to those two points of the adopted decision:
- The visa regime between the Republic of Moldova and Romania is imposed starting April 9, 2009.
- The Ministry of Foreign Affairs and European Integration and the Border Guard Service will undertake the necessary actions to execute this decision.
The Government’s decision has no regulation about the procedure of applying for visas, makes no difference between the Romanian citizens permanently residing in Romania, Moldova or any other country and leaves the measures to be undertaken at the total discretion of the Ministry of Foreign Affairs and European Integration and the Border Guard Service.
Several preliminary considerations must be made to analyze the reasons and modalities of adopting such governmental decision:
- The adoption of decision has been preceded by no other political or legal act of the authorities, establishing and proving the danger entailed by the free entrance of the citizens of an EU state (as Romania is) into Moldova. There was no decision of the parliament or any presidential decree on imposing the state of emergency and on taking the corresponding measures. There was no court verdict establishing the guilt of any Romanian citizens and their involvement in the April 6–7, 2009 protests, with the purpose to overthrow the Moldovan constitutional regime.
- Law no.269-XIV of 09.11.94 on exit from and entrance into Moldova provides that the foreign citizens and the stateless can exit and enter Moldova on the basis of the documents valid to cross the state border, which are recognized or accepted in Moldova, and of the visa, if the international agreements do not establish otherwise. Organic Law no.151-XVI of 08.06.2006, pursuing to strengthen the cooperation relations, abolished, since January 1, 2007, the visa regime for the citizens of the EU Member States, the United States of America, Canada, Switzerland, Norway, Iceland and Japan. As this law entered in force, it modified, implicitly, (or even "abolished") the provisions of the Law on exit from and entrance into Moldova, in the part referring to the EU citizens’ obtaining visas.
- The authorities’ prerogatives and competence in maintaining the legality and the legal order cannot be doubted, if those are envisaged by the Constitution and by the legal and normative acts making up the legal basis for activity of the state administration. Art.19 of the Constitution establishes that the foreign citizens and the stateless have the same rights and duties as the Moldovan citizens, save for exceptions provided under law. The Constitutional norms allow of restricting the exercise of certain rights and freedoms, but those should be envisaged by law, comply with the unanimously recognized norms of the international law and be necessary for the national security interests, territorial integrity, the country’s economic welfare, the public order, in order to prevent mass turmoil and infractions, protecting the rights, freedoms and dignity of other people, to prevent unveiling confidential information or to guarantee the judiciary’s authority and impartiality. The restriction must be proportionate with the situation determining it and cannot touch the existence of a right or a freedom.
In the text of the Government’s Decision no. 269 of 8 April, 2009, one can find no special legal reason; there is no reference to any constitutional norm or any legal norm to lawfully ground the introduction of some additional restrictions for some EU citizens entering Moldova. While instituting the visas entails additional restrictions, since it requires securing invitations to be endorsed by the Interior Ministry, which is responsible for migration, and other red tape costly procedures (travel tickets, medical insurances, accommodation proofs etc.)
The most important contradiction is that instituting the visa regime for the Romanian citizens, a member state of the EU represents a direct derogation from the Law no. 151-XVI of 08.06.2006. In order to comply with the rule of law principles, with principles of the hierarchy of legal norms and of the legislative process, this derogation had to take the shape of an organic law, adopted in accordance with the corresponding procedure. This is provided for by the Constitution and by Law no.780-XV of 27.12.2001 on legislative acts (art.9).
In this case, it was the Government which instituted the visa regime, through its decision, that is by adopting a normative act being at the lowest level in the hierarchy of legal acts erga omnes opposable: 1) The Constitution and the international acts; 2) organic and ordinary laws; 3)
the decisions and ordinances of the Government. There was no special law to empower the Government to issue that act, they invoked no organic or ordinary law enabling the Government to act as it did and they did not respect article 54 of the Constitution concerning the existence of circumstances to restrict certain rights and freedoms in the legislation.
We all realize that before validating the parliamentary elections, only the Moldovan Government holds full legal powers, but those powers do not allow the Government to abusively intervene into spheres regulated by organic laws, neither to complicate the situation in the foreign policy, which have already been considered as disproportionate, as the EU representatives have already asked for reestablishing the normal relationships with Romania.
Dictionaries define the word "abolished" as: got rid of, canceled, annulled, done away with, abrogated, out of usage. In juridical terms, abolition was mostly used as referring to: slavery; forced work and death penalty. In all the above-mentioned cases, the international community did not return to the initial situation, the character of abolition being viewed as final. In other words, abolition is viewed as a definite measure, which, although not being absolute, tends to be considered namely as such. The derogations in this respect could be admitted, but only for exceptional cases expressly determined as such, for a certain term and being adopted by observing the procedures existent in the legislation.
If the Moldovan Government, through a simple decision, can annul the regime established through an organic law and can intervene in major political matters, one can suppose, that at a certain moment and because of certain declared necessities, the Government may adopt a decision on suspending the enforcement of the Constitutional provisions banning forced labor or even may cancel the constitutional norm on abolishing the death penalty! Or, do the official statements that they will fire at protesters who will attack governmental headquarters and the law-enforcement representatives already mean the suspension of that constitutional norm?
1 Joint statement of the Foreign Ministers of the Czech Republic, France and Sweden on the situation in Moldova, 08.04.2009.