MonitoringPoliticsCommentaries

Preparations for elections

|print version||
Igor Botan / February 22, 2004
ADEPT logo

The quality of the electoral law

Albeit there is almost one year left until electoral campaign officially starts, parties are already warming up. So far, possible electoral alliances and relations between power and opposition have been topping the agenda of the would-be electoral contestants. Therefore, the legal framework, which would govern the electoral process, has been totally neglected.

For a start, one should bear in mind that the time left until next elections is not enough time for a cardinal revision of the electoral law. Electoral Code passed in November 1997 and viewed by international experts as a quite good document as compared to other similar laws in CIS or South-Eastern Europe, does no longer meet the standards in as far as election administration, voting procedures, transparency of the campaign finance, and campaign coverage in mass media, are concerned. Just for the sake of comparison, in Russian Federation electoral law has been revised practically after each election campaign or electoral cycle, whereas in Moldova the numerous amendments operated to the Electoral Code resumed to clarifying existing norms, providing favourable playing field to the ruling parties or coalitions, and raising obstacles to would-be competitors. For instance, the threshold of representation for political parties was raised from 4% to 6%, and later it was raised for electoral blocs to 9% and 12%, depending on the number of parties entering the bloc.

Still, in the time left until the next elections, it would be wise to bring the law in line with OSCE recommendations, at least. It is known for a fact that the Communist faction is currently working on amendments to the Electoral Code, however it remains tight-lipped about the articles they had set their eyes on.

Secondly, after Constitution had been amended in 2000 and the country turned to a parliamentarian form of governing, the 5th title of the Electoral Code referring to the presidential elections was excluded. In September the same year, the Law on Election of the President of the Republic of Moldova was passed, thereby the President was not elected directly by people, but rather by the Parliament. The law was passed in a big hurry, only several months prior to the expiration of the President’s mandate, and therefore was not well thought out.

The experience of the 2001 parliamentary and then presidential elections is not relevant either for us to claim that such legal clashes are excluded in the future. Thus, last presidential elections had been firstly set for December 1, 2000 the very same day the four-year presidential mandate expired. Under article 78(5) of the revised Constitution, Parliament’s failure to elect a new President after two consecutive attempts led to its dissolution on December 31, 2000 by the incumbent President, whose mandate had already expired. Although presidential seat was vacant (under Article 90(1), and the President was to be elected “within two months of the day the position became vacant”. However, under Article 90(4) of the Constitution the President’s mandate was extended for another 4 months, “until the newly elected President is sworn in”. Thus, the President was finally elected on April 4, 2001 by the newly elected Parliament.

The aforesaid example tests the applicability of the revised Constitution and the Law on Election of the President of the Republic of Moldova in cases when President mandate and that of the Parliament expire on different terms (more than a year apart). In cases when both mandates expire almost at the same time, as it would be the case in 2005, the things wouldn’t be so crystal clear, especially due to the discrepancies between the revised Constitution and the Law on Election of the President of the Republic of Moldova.

Wide berth for manoeuvres

To avoid possible conflicts between political forces on the eve of 2005 elections, certain things should be clarified right now. For a start, under the Constitution (Article 61 (3)) and Electoral Code (Article 76), parliamentary elections are to be held within three months after the expiration of its mandate, whereas according to Article 2 (1) of the Law regulating presidential elections the President is to be elected within 45 days prior the expiration of his/her mandate.

Constitutional Court ruling no. 31 of 10.11.1997 reads “Parliament mandate commences on the election day and ceases upon the expiration of 4 years”. The incumbent Parliament was elected on February 25, 2001, therefore according to the Constitution and Electoral Code the next parliamentary elections should be scheduled for any Sunday between February 26 and May 26, 2005. On the other hand, elections of the President whose mandated commenced on April 7, 20001 (the day he took the oath) should be scheduled sometime between February 22 and April 7, 2005. Those dates should be reconciled so as to avoid any violation of the Constitution and laws on elections.

Normally, given that the duration of Parliament and President mandates coincide, one legislature should only elect one President. If this principle is observed, then the Law on Election of the President of the Republic of Moldova would considerably reduce the 3 months period allotted by Constitution for Parliamentary elections, which would have to be scheduled sometime between February 27 and March 27, 2005, so that the new legislature would have enough time to convene (one month) and to elect the President by April 7, 2005 as required by law. This is the ideal scenario from a legal point of view.

On the other hand, the said principle (one legislature elects one President) is neither provided for in the Constitution nor in any other law, leaving the Parliament a wide berth for deciding the order of electing the new Parliament and the new President.

Majority faction in Parliament (including the incumbent one) or any other coalition not certain of its ability to secure 3/5 of the votes necessary to elect a President may want to exploit this, by electing the President prior to parliamentary elections. And they would encounter not a single obstacle in this respect. Once its mandate expires, Parliament may not amend Constitution nor could it amend or adopt organic laws, however it may pass ordinary laws and resolutions. Under the Law on the Election of the President of the Republic of Moldova (Article 11) “Parliament passes a resolution confirming that the President of the Republic of Moldova was elected”. And then, (according to Article 79 (1)) Constitutional Court is to validate election results.

Conclusions

In principle the ruling party may set the date of parliamentary elections so as to avoid any scandals related to parliamentary or presidential elections (from the end of February to March 2005) and to abide Constitution and the Law on the Election of the President of the Republic of Moldova.

However, the experience of CIS, which Moldova is a part of, indicates that the temptation is too high for political leaders to take advantage of any deficiencies in the legislation. The most recent example is Ukraine, where Constitutional Court did find enough “arguments” to allow President Kucima to run for his third mandate, albeit Constitution clearly states that one person may exercise the function of President only for two mandates.

Having said that, any temptations should be eliminated even if the incumbent majority in Parliament has given no grounds for suspecting it of ill intentions. In this respect, it is necessary to amend only two articles in the Law on the Election of the President of the Republic of Moldova.

Article 2(1) of the law should be modified as follows: “Elections of the President of the Republic of Moldova shall be held within two months after the expiration of the mandate”.

Article 11(2) should be modified as follows: “Parliament passes an organic law to confirm the election of the President of the Republic of Moldova”.

Arguments:

  1. The deadline set forth in Article 2(1) of the Law on the Election of the President of the Republic of Moldova for holding elections “at least 45 days prior to the expiration of the mandate”, was set arbitrarily. Article 78(6) of the Constitution provides only that “procedure of electing the President of the Republic of Moldova shall be outlined in an organic law”. Given that the Constitution specifically provides that Parliament should be elected after its mandate expires, there is no reason why the President should be elected before his/her mandate expires.
  2. Wording proposed for Article 2(1) would be in line with Article 90 of the Constitution that provides that “elections of the new President shall be conducted according to the law within 2 months of the day the position of the President of the Republic of Moldova became vacant”. The vacancy of the President position as a result of mandate expiration does not impose an interim function (Article 91), as is the case upon resignation, temporary impossibility to exercise the function, or decease. As we did point at the beginning of this analysis, 2001 election of the President showed that upon the vacancy of the position of the President as a result of mandate expiration, the President “exercises his/her mandate until the newly elected President is sworn in” (Article 90(2)).
  3. The fact that election of the President should be confirmed via an organic law does not allow for the President to be elected by a Parliament whose mandate already expired.
A new mission for Erhard Busek? In Favor of a Coalition Government in Moldova