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Improvement of electoral legislation

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Cristian Untila / February 28, 2006
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The European Union — Moldova Action Plan has recently turned one and the implementation of this very important document was summarised in Chisinau on this occasion. One of key subchapters of the Plan envisages the functioning of democratic institutions and the need to eliminate shortcomings of legislation and electoral procedures that the Council of Europe and the OSCE have established, besides the democratic conduct of the March 2005 parliamentary elections.

The newly-elected Parliament has adopted several laws on the modification of the Election Code after the parliamentary elections, which aimed to solve some of the signalled problems, but the 1465 (2005) Resolution and the 1721 (2005) Recommendation on functioning of democratic institutions in Moldova adopted by the Council of Europe (CoE) last autumn avoided to establish that the situation in the area corresponds to all standards and asked that the electoral legislation and practices “take into consideration the recommendations of the Venice Commission and of the OSCE/ODIHR immediately.”

The recommendations of international institutions did not leave room for interpretations or procrastination and, therefore, the Parliament adopted on November 11, 2005 a schedule of legislative actions in compliance with the Resolution and Recommendations of the commission on respect for obligations and commitments of CoE member states, pledging to ensure the presentation of draft laws mentioned in the schedule to the Council of Europe for expertise before their adoption. As regards the Electoral Code, the November 11, 2005 Parliament Decision # 284 establishes that the Council of Europe will make the expertise of the draft law in January-March 2005, while the final law must be adopted by August 2006.

Recommendations of CoE — OSCE/ODIHR, situation in 2005

The objections and recommendations of CoE — OSCE/ODIHR reveal several key aspects, envisaging both the electoral legislation and practices and related fields, which international institutions have spoken about more than once:

  1. Reduction of the electoral threshold, in order to lower the number of lost votes. If the electoral threshold for parties was lowered down to four percent, for electoral blocs to 8 percent and for independent candidates to 3 percent, it is still high enough, while competitors who do not succeed to the Parliament still garner votes. At the same time, the main political forces still are reticent over the perspective of lowering the electoral threshold because they fear that it halts the strengthening of strong parties and “makes the political spectre vague.”

  2. Modification of the electoral system proportionally based on one national constituency into a system with local constituencies, in order to ensure the necessary representation of territories, in particular, of minorities that live compactly. Although the need of modifying the electoral system is being invoked for a long time, the winners of the four parliamentary elections held after 1994 on basis of the proportional system based on one national electoral constituency said and continue to affirm that this is the best and most appropriate system for the political realities and conditions of Moldova. There were different arguments, while most of them envisaged: — the impossibility of holding elections in Transnistria; — the need of creating a comfortable parliamentary majority; — the danger of “buying votes” in local constituencies; — practice in the area of some countries with democratic traditions, etc. Nor the way the system should be modified — into a mixed system, a majority or a proportionally limited system — is relevant because of the lack of a political consensus. However, the tabled arguments should be updated, as adequate solutions are or can be worked out to most of shortcomings.

    The considerations mentioned above are partly valid in connection with the recommendations to review the legislation on parties, in order to allow the creation of some regional parties. A new law on parties is late, while the modalities that the Parliament intends to apply under conditions of a political consensus (in line with the November 11, 2005 Decision # 284), in order to review the present legislation on parties “accordingly to the European norms,” are unknown so far.

  3. Modification of the provisions on the electoral campaign, especially on printed and electronic mass media, in a move to provide equal opportunities. The situation is much interesting in this area since the equal access to mass media was ensured in a bigger or small measure at the March 2005 parliamentary elections and several local elections for the Chisinau mayor-general post in the Chisinau municipality. Even more, candidates themselves have noted that this equal access troubles them, with the debates that all competitors attend at the same time producing some negative effects, boredom, and tiredness of electors and competitors. This state of things and the situation of public mass media of Moldova indicate that the problem of “propaganda” in mass media has dimensions that exceed the proper electoral period and require the improvement of the electoral legislation and of the audiovisual legislation, especially of public broadcasting.

  4. Use of administrative resources in the electoral campaign. The 2005 amendments established certain regulations aimed to obstruct the use of administrative resources, but these norms are not clearly and efficiently established, especially as regards the “public functionaries” who must suspend their activity if they compete. Also, clearer provisions capable to eliminate the possibilities of authorities to get involved in activity of electoral bodies without any authorisation, under the pretext of “providing assistance” are needed.

  5. Issuing and updating of electoral lists, insurance of their accuracy. Although it is being indicated for quite a long time, the problem of electoral lists is still of present-day. The authorities test different technical innovations (such as “electronic pencil”, transparent boxes, electronic signature) and implement different “national programmes” on information of society, but the problem of adequate documentation and counting of electors raises criticism in continuation. Although the elector must be interested the most, the failure of local authorities to ensure the issuing and adequate checking of electoral lists, as well as the cooperation between the Ministry of Information Development and services of local authorities in charge with record are the main problems. Of course, a good record of residents helps the conduct of elections and many other problems of local communities (record of tax payers and collection of taxes; implementation of social programmes with concrete destination; determination of social needs of families; community development in general; migration monitoring, and others). The persistence of the record problem in a small country like Moldova is hardly explained and requires a rapid solution.

  6. Status of members of electoral bodies. The July 2005 amendments to the Election Code instituted a new procedure of creation of electoral bodies, based on representation of candidacies proposed both by local authorities and judges, and by parliamentary parties in these institutions. This norm has already raised the criticism of extra-parliamentary parties, though they can be represented by members without the right to vote in electoral bodies.

    Legislators established new regulations on the status of members of the Central Electoral Commission (CEC), but these norms politicised the functions of CEC members, especially because the new orders do not ensure a stability of the post and all guarantees for exclusion of influence of those who appointed the candidates, a situation that requires the modification of some provisions from the Electoral Code (Art.16, 19 and 20) and this is also a recommendation of CoE-OSCE/ODIHR experts.

    Some problems may appear in connection with electoral offices of polling stations, as there are cases when a party (electoral bloc) that has most of representatives in the Parliament holds the majority in a local council. Thus, some situations may occur when most of members of an electoral bloc would represent one party (electoral bloc) and the legality of functioning of this electoral body will be conditioned with the competence of members who represent other parties and of observers.

    However, we consider that some legislative and administrative measures aimed to ensure the depoliticising of electoral functionaries, training of some persons who will permanently participate in elections at all levels, under independent monitoring, would be needed in perspective.

  7. Insurance of the secret of vote. European experts are unsatisfied with procedures that require the applying of some stamps on identity documents and existence of counterfoil of the ballot paper. Although such mechanisms are normally functioning in many countries, there is a fear that they affect the secret of the vote and intimidate the elector in Moldova, so that the legislature should review them. The practice of applying these provisions does not allow some final conclusions, but the introduction of some cards of elector could be a partial solution to the problem of stamping the identity documents. The cancellation of counterfoil reduces the guarantees that ensure the counting of votes, prevention of falsifications, but eases the work of electoral bodies and reduces the costs, while the introduction of transparent polling boxes may help in this regard.

  8. Procedures of application and registration of candidates. The recommendations of international institutions call for revision of provisions on collection, submission and checking of signatures to support a candidate, as well as of procedures regarding the filling up and checking of the declaration on estate of candidates. Both topics are “delicate”, especially concerning the consequences of refusal or annulment of registration of electoral contestant and the legislative norms in this respect must be very clear, directly applicable, must prevent casual interpretations or abuses. It is hard to presume that the parliamentary political forces would accept the introduction of some very democratic and strict changes on income and estate declarations, especially when it is considered that the prosecutor’s office and justice are incapable to pay a full attention to rights, while the governing controls the law enforcement bodies. On the other hand, the situation in neighbouring countries presents eloquent examples about major significance of estate declarations and checking of their legality.

  9. Revision of provisions on minimal turnout needed for validation of elections. This last aspect could be easily placed under generic “office of inventions”. The local elections in Chisinau have provoked ardent debates on this topic and different proposals call from “annulment of direct elections” to the “need of civic education”, from “introduction of the mandatory vote and sanctions for non-participation” to “modification or annulment of threshold for validation”, from “obstruction of competitors who do not motivate the electorate” to exclusion of “defamation of contestants” through legislative or administrative methods. Fewer are those who tackle this problem in the light of responsibility of local councillors and mayors, of introduction of some sanctions for those who challenge early elections, as well as of continued exercising of all competences by deputy mayors whom the law does not absolve of any obligations, nor it harms any competence that they exert on behalf of an elected person. It is hard to make one conclusion, but the conduct of new elections not more often than once a year, so that the periodicity be known and electors and candidates “be not tired” would be one of best solutions.

Solutions proposed by ADEPT

The ADEPT Association has drafted a package of documents on the Moldovan electoral legislation within the Improvement of Election Code Project, supported by the Eurasia Foundation, which contains:

  1. syntheses of proposals and recommendations of international institutions, observers of elections, different institutions specialised in the election area, followed by necessary commentaries:

  2. draft legislative acts needed to solve the shortcomings signalled by CoE and OSCE/ODIHR, with detailed arguments for acceptable solutions;

  3. draft legislative acts needed to solve the problem of modification of the electoral system applied in the Republic of Moldova (mixed system / proportionally limited system);

  4. draft legislative acts needed to solve some problems of electoral technique (introduction of voter’s card, implementation of a mechanism aimed to allow nationals from other countries to cast their votes via post), etc.

All the documents contain explanations that argue the included provisions and estimate the effects of their implementation[1].

The adoption of recommended amendments to the Election Code and the improvement of some inherent procedures would allow the closure of this chapter from the monitoring package of the Council of Europe and would be an important step forward implementation of the E.U.-Moldova Action Plan, and this is the cause why we think that the drafted initiatives deserve a major attention.

  1. These documents were tabled to the parliamentary working group, the Central Electoral Commission, competent governmental and international institutions and they could be debated soon, including with the contribution of all those interested (they are available at the headquarter of ADEPT)
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