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Terms to schedule elections

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Igor Botan / July 31, 2008
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Reactions and rhetoric by leaders of political parties reveal that the 2009 parliamentary elections are being prepared. In this context, it is worth to know exact terms to hold elections. The things seem to be simple should parliamentary elections not be synchronised with presidential elections. The last factor imposes strict limitations that cannot be neglected if one wants to strictly respect constitutional norms and legislation. Article 61 (3) of Constitution stipulates that “the election of members of the Parliament shall be held not latter than three months after expiration of mandate or dissolution of the precedent Parliament.” Under Decision # 31 of the Constitutional Court from 10.11.97, “the mandate of the Parliament is over when the 4-year term after elections is over.” Given the fact that the acting Parliament was elected on March 6, 2005, its mandate will be over on March 7, 2009. Thus, a new Parliament should be elected not later than 3 months after this date; that means between March 7 and June 7, 2009.

The legislation on election of the Parliament competes with regulations of the Constitution and Law on election of Moldovan President because of synchronisation of events. Article 80 (1) of Constitution clearly says that “the mandate of the President of Moldova has a 4-year term and it takes effect when the president is sworn in.” On the other hand, Article 2 of the law on election of the President of Moldova says that the chief of state is elected “with at least 45 days before the expiration of mandate of the incumbent president.” As the incumbent president was elected on April 4, 2005 and he was sworn in on April 7, 2005, his mandate is over on April 8, 2009 and a new president shall be elected between February 22 and April 8, 2009. But Article 1 (2) of the Law on procedure of election of the President of Moldova says that “the Parliament of the same legislature shall elect a President of Moldova just once, except for resignation, dismissal, definitive impossibility to exercise tasks or death.” A new president will be elected by a new Parliament elected after the 2009 elections, as the acting Parliament has elected the chief of state once.

The exception relating to the vacancy of president mentioned above is worth of a careful consideration. According to Article 90 (1) of Constitution, “the office of President of Moldova is vacant after expiration of mandate, resignation, and dismissal, definitive impossibility to fulfil tasks or death.” In addition, Article 79 (6) of the Supreme Law says that “the procedure of election of the President of Moldova is established under an organic law.” In this respect, Article 2 of the Law on election of the chief of state makes a clear delimitation between election of a new President when the mandate of the incumbent president is over and other cases: “When the post of President of Moldova becomes vacant after resignation, dismissal, definitive impossibility to fulfil tasks or death, a new president shall be elected within 2 months.”

The fact that elections shall be organised before the expiration of president’s mandate is confirmed by Decision # 41 of the Constitutional Court from 14.12.2000: “The court revels that constitutional norms from Article 90 (4) and Article 2 of the law on election of the President of Moldova delimit the conditions and term for election of a President should the mandate of the incumbent president be over and the term for election of the president should this post be vacant after resignation, dismissal, definitive impossibility to fulfil tasks or death.”

An examination of legal and constitutional regulations above reveals a competition rather than contradictions between these norms. An elementary calculation shows that the Parliament could schedule parliamentary elections without violating the Constitution or other laws on election of the Parliament and chief of state. In principle, there are 3 ways for the Parliament to schedule elections:

  1. The Parliament may set the elections for a Sunday, either on March 8, 2009 or on March 15, 2009, this being the only way to respect all temporary provisions in principle. Should this happen another way, conditions of the 2001 and 2005 elections would be reproduced, with the newly-elected Parliament having the possibility to elect a new president before the expiration of the mandate of the incumbent president on April 8, 2009. In order to follow this way, the Parliament should make a decision to set parliamentary elections not later than at the end of December 2008, as Article 76 (2) of the Election Code says that “the Parliament shall schedule parliamentary elections not earlier but 60 days before elections,” and the Parliament is in holidays in January;

  2. The Parliament may set the day of parliamentary elections between March 7 and April 7, 2009, but it does not manage to early elect a president, doing this after April 8, 2009. This way, the incumbent president will be ad-interim president “until the newly-elected president will be sworn in” (Article 80 (2) of Moldovan Constitution), according to Decision #41 from 14.12.2000 by Constitutional Court, which interpreted Article 91 of Constitution concerning the interim office). This way, the Parliament would not violate any legal norm and it would be able to further invoke that the election of the President was postponed until constitution of leading bodies of the Parliament, establishing of a special commission to elect the chief of state and hold elections. This way, elections could be set in the first week of February after the winter parliamentary holidays;

  3. The Parliament sets the elections after April 8, 2009 and this would reveal that norms of the law on election of the President and Decision #41 of the Constitutional Court from 14.12.2000 were neglected. Different arguments on priority of some norms over others will be invoked in this case. Of course, the Election Day will be chosen after the winter parliamentary holidays, in February 2009, should the ruling party choose this way. But nor this way parliamentary elections should be set after May 7, 2009, so that to have enough time to validate the election of the newly-elected Parliament and convoke it before the expiration of two months since the post of Moldovan President became vacant, in compliance with Article 2 of the Law on election of President.

In these circumstances, should any misunderstanding or divergence be established, the best way for the Parliament would be for to “interpret” legal norms on establishing of parliamentary and presidential elections in line with Article 66 (c) of the Constitution. Another way for the Parliament is to modify Article 2 of the law on election of the President, so that to elect the latter 45 days after expiration of mandate and not before, the way the Parliament is elected after the expiration of mandate not before.

Finally, one may say that the opposition is short of time to invent schemes of coalition on the basis of “joint lists” or mergers, should the electoral campaign normally start in late December 2008.

Also, talks on organisation of the 2009 parliamentary elections in a special constituency in Transnistria make no sense because of the lack of time to modify the Electoral Code, the Law on election of the President and to clarify a series of problems related to further prospects to maintain political stability and Transnistrian settlement.

Democratic standards: before or after… Disunited opposition running the risk…