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Constitutional crisis: Responsibilities by consequences

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Veaceslav Zaporojan / May 15, 2011
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Following lots of ECHR judgements against Republic of Moldova, our politicians wanted to find out names of judges who issued rulings that hit the budget of Moldova. In this train of thoughts, it’s also time to learn out the names of lawmakers who made decisions that seriously harmed Moldova, as some ECHR judgements indicate the inappropriate framework, sometimes adopted ungracefully. Let NGOs and journalists who accuse judges make an analysis of legislative and governmental policies which hit the budget through ECHR judgments.

This article will analyse just a case from history of our parliamentarianism, which led to three early legislative elections and a republican constitutional referendum, this way depriving the budget of tens of millions lei, and making us forget about ordinary elections for a long time. That’s about Law 1115 from 05.07.2000 amending the Constitution, which generated a deep constitutional and political crisis faced by our country right now.

On July 5, 2000, the Parliament of the Republic of Moldova as constituent assembly adopted the controversial Law 1115-XIV. Under this law, Moldova suddenly turned from presidential republic into parliamentary republic, without the consent of people, which Article 2 of Constitution introduces as sovereign of state power. The constitutional event would not be controversial, but the sovereign nation chose stronger presidential prerogatives, not their reduction, during the republican consultative referendum on May 23, 1999. Hence, the referendum brought together 1.4 million electors or 58.33 percent, and 55.3 percent of them answered “yes” to the question “Do you want to see the Constitution changing with the purpose to introduce the presidential ruling system in the Republic of Moldova, so that the chief of state would be in charge with building and ruling the Government, as well as with country governing results?” The answer of 30.85 percent of electors to the same question was negative.

Under the then effective legislation, the referendum did not have a compulsory legal effect, as it did not bring together 3/5 or 61 percent of voters. If the nowadays legislation (which foresees 50 out of 33 percent of electors to validate a decision) was effective at those times, the then chief of state, Mr. Petru Lucinschi, who initiated the referendum would have got an incontestable victory, and the Parliament would have had to award him the Government ruling prerogatives, too, almost like the US system.

In a logical and legitimate way, people’s representatives should take into account the opinion of majority and respect the will of the nation, though the law was not obliging them to do so. For example, the votes of half of participants in a referendum in Switzerland are enough to impose a decision to the Parliament.

The Central Electoral Commission (CEC) established that declaring the republican consultative referendum invalid is groundless, using the word “can” from Article 171 of the Electoral Code: “CEC can invalidate a republican referendum, if the latter brought together less than 3/5 of electors included into rolls.”

In its turn, the Constitutional Court confirmed the results of the republican consultative referendum under Decision 32 from 15.06.1999, but decided that the referendum “was consultative and its results cannot produce legal effects.” Thus, the Central Electoral Commission and Constitutional Court satisfied both the parliamentary majority and the President.

However, people’s representatives who were in opposition with the chief of state wanted to reply him the same way and initiated the revision of Constitution in a reverse direction: to weaken the constitutional status of the President and deprive people of the right to elect the chief of state.

On August 2, 1999, 38 legislators ignored people’s will expressed at the May 23, 1999 referendum and submitted a draft law to the Constitutional Court, seeking the election of the chief of state by majority of the elected deputies. Their names are: Alexandru Mosanu, Valeriu Ghiletchi, Vasile Nedelciuc, Ion Neagu, Alecu Renita, Alexandru Lazar, Pavel Prodan, Mihai Cimpoi, Ion Dediu, Vasile Cotuna, Vasile Soimaru, Ion Razlog, Andrei Strimbeanu, Mihai Ciorici, Ilie Untila, Ala Mindicanu, Ion Ungureanu, Tudor Lefter, Stefan Secareanu, Vlad Cubreacov, Dumitru Osipov, Ecaterina Mardarovici, Vasile Untu, Eugen Girla, Anatol Dubrovschi, Anatol Ciobanu, Vasile Spinei, Mihai Ceban, Valeriu Muravschi, Dumitru Paladi, Sergiu Zaharia, Vitalie Tabunscic, Ilia Trombitchi, Valeriu Matei, Iurie Rosca, Sergiu Burca, Vitalia Pavlicenco, and Vladimir Reus.

It’s worth to mention that the procedure of the tabled bill would not have perturbed the political life of the country very much, as the Parliament was obliged to elect the chief of state. This presidential election procedure is typical to classical parliamentary republics like Greece, Italy, and others. By the way, those seeking the modification of Constitution motivated their initiative with this argument. Even more, the draft did not allow the incumbent president to dissolve the Parliament in case of failure to elect a chief of state.

In order to understand the ulterior illegal actions of the Parliament, the complete draft seeking the revision of Article 78 of Constitution “Election of President” will be explained below:

(1) The President of the Republic of Moldova is elected by the Parliament by secret vote.

(2) Any citizen of the Republic of Moldova over 35 years of age that has been living in the country and speaks the state language can run for the office of President of the Republic of Moldova.

(3) The candidate gathering the votes of majority of elected legislators is declared winner. If no candidate wins this majority, a runoff vote is organised between the first two candidates who won most of ballots in the first round.

Under Notification 6 from 16.11.1999, the Constitutional Court gave green light to the draft law seeking the revision of Constitution, as the right to change the President Election procedure belongs to the Parliament as constituent assembly. One fears that a mistake was committed when Constitution was adopted, as Article 142 (1) does not require the consent of people to change the governing procedure.

The notification by the Constitutional Court raises many reserves as well. Or, the draft approved by Constitutional Court deprived Moldova’s citizens of the constitutional right to elect the chief of state. Without insisting on this strange conclusion of the Constitutional Court, as well as the May 23, 1999 referendum, one may notice that people’s representatives had the right to modify the Constitution and thus the country could maybe join European parliamentary states.

However, the constitutional majority of the 14th Parliament preserved its ambitions in an aware or unaware manner. On July 5, 2000 it adopted another law without the notification of the Constitutional Court, turning Moldova into a “more parliamentary” republic. Thus, while the draft law was seeking the election of President by 52 parliamentarians, the new law required the votes of 61 deputies. Unlike the draft law which was opposing the dissolution of the Parliament in case of failed election of President, the new law contains such a stipulation.

Hence, by running against own people and President, the 14th Parliament built a fire under itself and further fell down. Failing to elect the chief of state, parliamentarians had to retire on a “well-deserved” pension of two years of legislative service only.

To note that under the regulation in effect in times gone by, the Parliament could modify just in editorial terms the draft approved by Constitutional Court. So, some questions would be logical: was the initial draft modified casually? Did legislators or members of the Parliament’s apparatus modify it? If parliamentarians modified it, did they know that their action was illegal? An inquiry is needed to answer these questions.

A brief analysis would make one think that the draft law was deliberately modified, as Article 78 of Constitution included 3 paragraphs in the bill approved by Constitutional Court, while now it contains 6 paragraphs. Such a metamorphosis cannot be casual. The question is who is to blame for this flagrant violation of law? Given the fact that three early elections and a republican referendum which involved large expenses were organised for this reason, the Prosecutor-General should file criminal charges against those who voted the bill unadvised by Constitutional Court or against parliamentary functionaries who “imposed” the “edited” draft law to lawmakers.

If criminal charges would not have sentenced anybody, they would have teach future deputies or people’s representatives in local public organs, who do not want to vote decisions on execution of court rulings like the Parliament. Such councillors could be accused without any hesitation under Articles 328 and 329 of the Criminal Code on power abuse or service negligence charges.

Article 135 (1) (a) from Constitution allows the Constitutional Court to control the constitutionality of any law, including on revision of Constitution. Realising this fact, late parliamentarian Victor Cecan contested Law 1115 from July 5, 2000 on amendment of Constitution in Constitutional Court, signalling 17 modifications unadvised by the competent court.

The Constitutional Court found a very simple way to shirk from guaranteeing the supremacy of Constitution, saying in Decision 5 from 18.05.2001 that the adopted law aimed to amend the Constitution is part of Constitution, so that it cannot undergo a constitutionality control. Thus, the Constitutional Court ignored own notification concerning the draft law amending the Constitution. For this reason, all court’s notifications on drafts amending the Constitution do not have any constitutional and legal effect, as parliamentarians can modify an advised bill while turning it into law, without running any constitutional sanctions. This is a problem for the Constitutional Court and it could be settled by regulating the term when such a law is indictable. Or, let’s admit that the Constitutional Court must consider the constitutionality of a law seeking to amend the Constitution such as Law 1115 from July 5, 2000; doing so is problematical but possible after the enforcement of this law for 11 years.

Going back to the way Law 1115 from July 5, 2000 was adopted, the haste the draft law on amendment of Constitution was worked out with should be noted. With just 12 days before adopting the law, on June 22, 2000 the so-called special commission in charge with considering bills seeking the amendment of Constitution was made of chairman Misin Vadim, deputy chairman Rusu Eugen, members Ciobanu Anatol, Mosanu Alexandru, Postoico Maria, Solonari Vladimir and Ungureanu Ion. The commission was built and Law 1115 was adopted in a hurry because of the need to anticipate the examination of the draft law on revision of Constitution tabled by President of the Republic of Moldova, which aimed to strengthen the prerogatives of head of state, oblige the prime minister to report his actions to the chief of state, introduce a popular procedure to control through referenda the laws aimed at amending the Constitution, etc. It was not by hazard that the Constitutional Court advised this draft law on July 11, 2000, while the Constitution was almost modified and the President of Moldova was not able anymore to initiate the revision of Constitution.

The new commission should consider three draft laws aimed to amend the Constitution. It selected diverse norms from three drafts (6 bills were recorded in Parliament), without taking into account the initial concept of each of them. For example, the initial bill was both excluding the function of supervising the Prosecutor’s Office and was subordinating this institution to the Ministry of Justice, in line with recommendations by international institutions. But Law 1115 stipulated just the first half of this concept, though the notice said and lawmakers were told that the Prosecutor’s Office would be subordinated to the Ministry of Justice.

One cannot say that legislators breached the Parliament’s Regulation because they were not informed. The deputy chairman of the special constitutional commission warned them that the Regulation was not allowing the modification of the draft law concerning the revision of Constitution advised by Constitutional Court. However, the Parliament urgently adopted the law in three readings, with an indescribable febricity, changing the governing method this way.

Even more, Article 78 of Constitution that the special commission proposed for adoption included 7 paragraphs, with one of them, the forth, reading: “ if no candidate obtains the required number of votes in the runoff ballot, a third round of elections shall be held to choose from the candidates who participated in the runoff vote, and the candidate who gathers the votes cast by elected deputies shall be considered elected”. So, this paragraph would have saved our country from all needless expenses for early elections.

Unfortunately, this paragraph was deleted upon insistence of some legislators. Thus, the chairman of the special constitutional commission exclaimed during the sitting; “not less than three fifths, and 100 times if three fifths are not gathered, the President should disperse them if those present in this sitting hall have no brain, that’s why not less than three fifths. Even 2, 3 or 20 rounds if needed, no problem.” Deputy Vladimir Voronin stated all in the same key: “…we speak about head of state; if we want to raise this status of the chief of state, he should be sure that he enjoys the support of a larger majority than 50+1. This majority gives, awards him more independence, more autonomy in his activity of President. Our faction seeks the withdrawal of these two digits 50+1 required for I do not know which round, and repeat elections as long as a good President is not elected.” To note that the chairman of the special commission further stated without hesitating: “The formula is clear. The paragraph stipulating the third round is removed with the vote of majority of deputies.”

We think that the Republic of Moldova should know all these things, which led to the current constitutional crisis for sure. Regretfully, the voting of Law 1115 from July 5, 2000 concerning the revision of the Constitution was not nominal. Just five out of 95 members of the 14th Legislature who attended the July 5, 2000 sitting opposed this law.

In conclusion, the early elections that these persons are directly to be blamed for deprived the budget of the Republic of Moldova as follows: 7 million lei on February 25, 2001, 16.2 million lei on July 29, 2009, 8.1 million lei on September 5, 2010, 45.7 million lei on November 28, 2010 plus 13.1 million to recount ballot papers — 90.1 million lei overall. After dissolution of the 14th Legislature some deputies got pensions covering 75 percent of all revenues for this office after two years of “governance”. Comparing prejudices faced by country because of some judges and the elect who voted an anti-state law, there is no too much difference.

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