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A faulty start of the election campaign

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Igor Botan / January 18, 2005
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The fourth parliamentary election campaign has started. Interestingly enough, all the electoral campaigns for the parliamentary elections since the Republic of Moldova (RM) declared its independence were preceded by problems, including the setting of the date of elections.

The date of the parliamentary elections of 27 February 1994 was set by decision no. 1608-XII on the Early Elections of the Parliament, signed by the former Speaker of the Parliament, Petru Lucinschi, on the 12th of October 1993, two days prior to the adoption of the Law 1609-XII on Parliamentary Elections, of 14 October 1993. The arguments for that were related to “the need to speed up socio-economic reforms, development of democracy and political pluralism”, and also to the awareness of “establishing a professional Parliament based on the multi-party system”. In other words there was a need to elect a new legislative body to substitute the Supreme Soviet of the Moldovan Soviet Socialist Republic, elected on March 10, 1990, the name of which was changed and became the Parliament of the RM.

No doubt that the former Speaker of the Parliament played a determining role in promoting the election reform in 1993, by supporting the expert group who developed a very good draft law. The only strange thing at that point was the fact that the law on parliamentary elections wasn’t passed first, which would set the date of elections, according to art. 7(1) — “the date of parliamentary elections is established by decree of the President of RM.” However, this aspect was not in the attention as didn’t have any major impact on the elections in 1994.

The fact that setting the date of elections can be an opportunity for creating certain advantages was first noted in November 1997, when the Electoral Code was to be adopted, aimed at introducing standards in the entire electoral legislation of RM. At that time, Petru Lucinschi was already President of RM and he changed radically his opinion on the proportional election system, which he had promoted in 1993, prompting that he would not support the adoption of the Electoral Code. One of his reasons was that fact that article 76(2) of the draft Code stipulated that “the date of Parliamentary elections is established by decision of the Parliament”. Therefore, on 18 November, 1997, three days before the Parliament would vote the Electoral Code, in a presidential decree no. 373-II he set the date of parliamentary election for the 22th of March 1998, based on art. 7(1) of the Law on Parliamentary Elections, of 1993.

Obviously, this caused reactions on concern and various interpretations. The Parliament passed the Electoral Code via the Law no. 1381-XIII, on 21 November, 1997, but avoided getting into conflict with the President regarding the date of the elections. Anyway, the head of the state was obliged to promulgate the Electoral Code under certain conditions stipulated in the Constitution. That particular case showed how much importance is given to the aspect of setting the date for elections by decision-makers.

The next elections which took place on 25 February 2001 were early elections, being preceded by problems which were eventually resolved by a decision (no.4 of 26 December 2000) of the Constitutional Court which determined the circumstances which justified the dissolution of the Parliament. For the third time, President Luchinschi had the right to set the date of elections, because, according to article 76(3) “in case of dissolution of the Parliament, the date of elections is established by decree of the President of the RM.” The head of the state had established the date of the early parliamentary elections by decree no.1843-II of 31 December 2000, which was published in “Monitorul oficial” on the same day. It should be noted, however, that the date of coming into force of that decree was 12 January 2001, unlike previous decrees which came into force on the date of publication. This is the only case which showed that when it comes to setting the election date the interests of the contestants, electoral bodies and citizens can be taken into account. In this particular case, 12 days were left between the publication of the date of elections in “Monitorul oficial” and the coming into force of the decree, and it was the period of winter holidays, when no activities or events happen, especially electoral ones. Moreover, there were 45 days left between the coming into force of the decree and the date of early elections, which is in compliance with the Electoral Code.

It might seem that after the experience of the three election campaigns, in absolutely normal conditions, the Parliament could set the date of the upcoming elections in strict compliance with the electoral legislation of RM. But it wasn’t meant to be. The main opposition parties running for parliament claim that the majority faction in Parliament breached at least 2 normative acts, when it set the date of parliamentary elections for the 6th of March, 2005, by decision no. 444-XV of 24 December, 2004, indicating that the decision was coming into force on the date of adoption, that is immediately. It was based on the Law no. 797-XIII on the Adoption of Parliament Regulation, of 2 April, 1996 and on the Law no. 173-XIII on the Publication and Coming into Force of Official Acts, of 6 July, 1994, which stipulate that official acts come into force on the date of publication or on another indicated date following the publication.

Interestingly, the decisions of the Constitutional Court no. 32 of 29 October, 1998, no. 4 of 4 February, 1999 and no. 20 of 29 April, 1999 clearly stated that normative acts (laws, Government and Parliament decisions) come into force only on the date of publication or on another set date following publication in “Monitorul Oficial”. A curious thing to note is the fact that the above mentioned decisions were made on the initiative of a member of the Communist faction, Victor Cecan, and of a Cabinet member, supported by the same faction, which proves that decision no. 444-XV, which contradicts the law, was made on purpose. The purpose, obviously, was to register the Communist Party first, so that it appears first on the ballots. One can understand the fact that the Central Electoral Commission started the registration of parties on the basis of the principle of presumption of constitutionality of normative acts, unless a decision of the Constitutional Court states the contrary. What is quite difficult to understand is why the Constitutional Court refused to examine the appeal submitted by the Christian-Democratic Peoples’ Party (PPCD), arguing procedural grounds, and why the Supreme Court of Justice refused to examine the appeal of the Social Democrat Party (PSD).

All these can have a negative impact on the election campaign. Apparently, the opposition parties are accumulating more and more evidences which could eventually be brought in contesting the final results of elections. Undoubtedly, the undermined access to justice during the election campaign can be regarded as a serious fault. Thus, article 7(3) of the Law no. 793-XIV of 10.02.2000 stipulates that “based on the electoral legislation the courts of justice can resolve appeals on election matters, except for those attributed by law in the competence of other courts of justice”. The Electoral Code is the one such very special law, which is paramount in regulating election issues, which in article 66(3) stipulates that “appeals on actions and decisions of CEC are to be lodged at the Supreme Court of Justice”. On the other hand, art. 67(5) of the Electoral Code says that “appeals lodged in courts are examined in accordance with the provisions of the Code of Civil Procedure and the Law on Administrative Procedure”. This Law on Administrative Procedure in article 8(4) stipulates that “under conditions of the Electoral Code, the Chisinau Court of Appeal verifies the legality of CEC decisions related to violations of electoral legislation”. As indicated above, the Electoral Code says a totally different thing. Obviously this contradiction leaves room for speculations and interpretation, thus undermining the principle of due resolution of electoral disputes. That is why the candidates in elections went to the Supreme Court of Justice and to the Court of Appeal at the same time. Although art. 34(7) of the Law of Administrative Procedure obliges the Government to prepare the necessary changes to deal with contradictions, this has not happened over the last 5 years.

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