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Presidential election: hazard versus consistency

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Igor Botan / January 13, 2011
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Benchmarking the operating field

Agreement on the establishment and operation of the Alliance for European Integration (AIE), signed on December 30, 2010 announced “the legalization of the activity of stable governance that shall be valid for the duration of a full four-year term” by the signatory parties: Liberal Democratic Party of Moldova (PLDM), Democratic Party (PD) and the Liberal Party (PL). Signature of the Agreement has shattered the hope of the Party of Communists of the Republic of Moldova (PCRM) to get revenge for the lost of power in 2009. The Agreement stipulates the sequence of establishing the ruling state bodies, the way of sharing the positions and the establishment of AIE Council, which will have to deal with the settlement of conflicts and other sensitive issues. The most sensitive issue — presidential election, which would allow to overcome the institutional crisis and to establish political stability, is not tackled in the document, mentioning just the need to achieve this objective. One of the main purposes of the Agreement is to remove any blockage and dysfunction in the process of joint governance of the signatory parties.

The signing of the Agreement in front of cameras point to the role the public opinion could have in ensuring the compliance with its provisions. Signatories’ gesture could be interpreted as invitation for the public to sanction the party which would proceed in contradiction with the provisions and spirit of that document. But for this end, the Agreement should be made public, which has not yet happened. Delayed publication of the Agreement may point out to the poor quality of the document; appeared as a result of discussions and negotiations that have lasted for a month. The need to publish the document is increasingly felt to calm the spirits and inhibit speculative momentum vis-à-vis the eventual fate of the AIE. The thing is that the manners of Moldovan political class leave vast space for inflaming the imaginations about the extent of moral corruption, hypocrisy and disgracefulness of politicians in the AIE and the PCRM.

To combat the circulation of some fanciful scenarios, the AIE could do some things that would milestone the field of eventual manoeuvres of the three constituent parties:

Time limits for presidential elections

Only after eventual successful presidential election it will be possible to talk about overcoming the institutional crisis. This task is urgent, and it shall be conducted in strict accordance with the Constitutional provisions and legislation in force. But given the declared intention of the PCRM to resort back to boycott, it would be preferable that the presidential election procedure in Parliament would not be launched before identifying some additional measures that may increase the likelihood of reaching the victory. In this sense, it is possible to take advantage of temporal elasticity factor, which will set reasonable deadlines for launching and successful completion of the procedure. The thing is that after undergoing in 2010 through two loops of the vicious circle in trying to elect the head of state, currently, there is no predetermined time for organizing presidential elections.

Indeed, Article 90 par.(4) of the Constitution provides that “within two months from the date on which the office of President of the Republic of Moldova becomes vacant, the elections for a new President shall be organized, in accordance with the law”. The vacancy of presidential office was established by the Constitutional Court on September 17, 2009 after the former president Vladimir Voronin has submitted his resignation, and the two months prescribed by the Constitution for presidential elections have passed after the boycotted two attempts to elect a president in November and December 2009. Henceforth there is no point of reference prescribed by the Constitution and the legislation in force regarding the time of establishing the date for presidential elections.

Perhaps, it is correct that the constituent legislator has not fixed the benchmarks and deadlines for the presidential elections generated by successive use of the boycott, thus leaving room for breaking the vicious circle of boycotts in row by other methods. It is a finding which may broaden the field of AIE manoeuvres by potential use of temporal elasticity factor. In this respect, there are two possibilities of dealing with presidential elections. The first can be called hazardous, and the second — consistent.

Hazardous approach to presidential elections

Launching the presidential election procedure immediately after the election of the ruling bodies of Parliament and appointment of Government would be a somewhat hazardous action, because the PCRM continues to threaten with boycott, holding the needed number of seats to make it happen. This is on the background statistics showing that in the last ten years, under the existing regulations on presidential elections, six out of eight attempts were successfully boycotted. In addition, lately, the PCRM’ main policy instrument was the boycott. Even after the recent parliamentary elections the first PCRM manifestation was boycotting the election of the Speaker of Parliament.

The above findings seem to be sufficient for understanding that hazardous approach towards presidential elections may result in perpetuation of institutional crisis, as Moldova will enter into the third loop of the vicious circle. It is true that the AIE could resort to negotiations with the PCRM in order to find compromise solutions, such as identification of some neutral candidates for the position of the head of state etc. The problem is that such an approach would also contravene the Agreement on establishing the AIE. These circumstances leave room for handling obscure scenarios of possible attempts to convince, corrupt or blackmail at least two PCRM representatives to make them give up the boycott and contribute to presidential election. Handling these scenarios is aiming at undermining the AIE image, which is just not the most brilliant one.

There is only one solution against deliberate decisions of resorting to boycott — to introduce mandatory quorum of MPs’ participation in the voting. In December 2000 the Constitutional Court (CC) adopted a decision on the bottom line of the quorum — 3/5 of the MPs’ votes, which is equated with the minimum number of votes needed to elect the president. It is curious that Article 6 par.(2) of the Law on election of the President of the Republic of Moldova refers only to “special public sitting of Parliament which is deliberative if attended by at least 3/5 of the elected MPs”, while the Decision no.45 of December 18, 2000 of the Constitutional Court stipulates that “as the special public sitting of Parliament to elect the President of the Republic of Moldova as well as the actual presidential elections is considered valid only in case if attended at least by 61 MPs — 3/5 of elected MPs”. This means that CC actually have not allowed the boycott, and Moldovan parliamentarians have messed up in the presidential election, both in May-June 2009, as well as in November-December 2010.If they would carefully read that CC decision and would address it for further explanation, it would have been possible that Republic of Moldova avoided institutional crisis.

In this sense, we could say that the statements of some AIE members such as: “Article 78 of the Constitution, concerning the presidential election with at least 3/5 of the MPs’ votes, saved the democracy” are inaccurate. It would be correct to say this: “the change by the PCRM in 2004 of the Article 1 par.(2) of the Law on election of the President of the Republic of Moldova, a non-imposed and deliberated one, prohibiting the Parliament of the same term to choose more than one-time the President and a lapidary reading of the CC decision of 18.12.2000 — saved the democracy”. Indeed, if the PCRM would have not amended the Article 1 of Law, then it could choose its own candidate for the position of President before the ordinary parliamentary elections in February-March 2009 with votes of 56 PCRM MPs and possibly with some 5–7 votes of PPCD MPs. And after the ordinary parliamentary elections in May-June 2009, PCRM would be able to insist, according to CC decision, to ensure the quorum and on voting process itself, otherwise postponing the elections whenever it was needed, a situation which could be solved only by the Constitutional Court.

Currently, the situation established before launching the election of the president, AIE could amend the Article 6 of that Law, lifting the mandatory quorum, both for the special sitting, as well as for the voting process itself, from 3/5 to, say, 4/5 or 5/6. Constitutional Court, if required, will have no ground to invalidate such a change, because the Constitution says unequivocally that procedure of presidential election shall be established by organic law. Since 2000 until 2009 the organic law did not stipulate any quorum. In general circumstances of confusion concerning the enforcement of the law on presidential election, the CC absolutely correctly decided that the quorum is necessary, and its lower limit should be equal to the minimum number for electing the President — 3/5, established by the Constitution, leaving it up to the Parliament to establish another quorum, especially that this is absolutely necessary to break the vicious circle of boycotts and save the country from instability. If the quorum is not reached, then the elections shall be postponed whenever necessary, until meeting the required conditions. Otherwise, everything depends on the vote of MPs, and the dissolution of Parliament shall occur after two valid attempts, i.e. meet the whole set of conditions for presidential elections, when none of candidates would accumulate at least 3/5 of the votes in favour.

However, the above measures are insufficient to solve the boycotting problem. In 2000, when the first presidential elections were held in the new formula, the CC has been involved to resolve the gaps committed by legislators in drafting the Law on procedure for electing the RM President. At that time nobody could imagine that the use of boycott in presidential election process will become a real plague. Therefore, on December 26, 2000, CC has adopted additional decision (no.4) in which it stipulated: “Article 78 par.(5) of the Constitution expressly provides that the acting President shall dissolve the Parliament if the President of Moldova was not elected even after repeated elections, held in compliance with constitutional provisions and the organic Law nr.1234-XIV. Constitutional Court considers that the more so the dissolution of Parliament is justified if the head of state is not elected because the repeated elections were blocked by the majority of MPs. Considering the President’s constitutional right to dissolve the Parliament in the mentioned circumstances, it is necessary to take into account that this right is a way to respond to the obstruction of repeated presidential elections. In this case, the head of state is not only entitled to dissolve the Parliament, but, according to Supreme Law, has also the obligation to do so”. In this context, it must be also taken into consideration that CC ex-President, Pavel Barbulat, was also one of the two candidates for the presidential position, along with the PCRM leader, Vladimir Voronin, and the invoked decision of Constitutional Court could bear the mark of a legitimate, human and corporative reaction to the conduct of MPs who have proposed the CC Chairman to the position of the head of state, and then got involved in some political games, resorting to obstruction and boycott.

Currently, we know that using the boycott has become a common practice and that out of eight attempts to elect a President of the country six were boycotted successful, causing three times early parliamentary elections. And now we are again on the threshold of a possible boycott, without knowing what will be the denouement, but knowing that there is a declared PCRM intention to do so. In these circumstances, to try effectively to combat the use of boycott, the Parliament should define in the Law on the procedure of electing the RM President two new concepts:

If the parliamentary majority would decide to amend the Law on the procedure of electing the RM President in accordance with the above mentioned, some of the MPs should immediately challenge with the CC the constitutionality of the amending law in order to see the results and applicability of the additions made. Only after a satisfactory result from the constitutional jurisdiction court, the procedure could be initiated to elect the head of state in framework of this hazardous approach.

Consistent approach of presidential elections

Presidential election problem can be also approached through the principle of consistency in achieving a clearly formulated purpose. The starting point of this approach is the essential consent of the AIE, on the one hand, and of the PCRM, on the other hand, regarding the overcoming of political crisis by amending the Article 78 of the Constitution regarding the presidential election. The proof of this consent is that at the beginning of May 2010, both the AIE and PCRM have registered in Parliament the drafts on amending that Article in the Supreme Law, accompanied by the Constitutional Court opinions, which is something extremely important. In this case, the difference between the two drafts is not principled, in sense that the need for constitutional change is not questioned, the difference reflecting only the views of the AIE and the PCRM on presidential election procedure. Thus, taking into account the temporal elasticity, described above, we may say it is justified to postpone the procedure of electing the President until the Article 78 of Constitution will be amended in accordance with the drafts registered in the Parliament.

To speed up the settlement of the problem, AIE has resorted to the referendum of September 5, 2010, which failed due to absenteeism caused also by the boycott organized by PCRM. Now, logically, it is necessary to try to amend the Article 78 according to the formula proposed by PCRM. That is, the Parliament may decide to put to vote, with qualified majority of 2/3, the PCRM version — presidential election by Parliament with successive decrease in three steps of the necessary majority of votes, starting from 3/5 until the simple majority. It would be the best option, including for PCRM, to vote its own draft and not have to undergo through the shocks of corruption, betrayal, splitting etc.

Any use of boycott by PCRM against its own draft of amending the Constitution would put a lid in PCRM’ boycotting activity, which began with: boycotting the presidential elections; then the parliamentary sittings; the constitutional referendum; the legal personalities and individuals; so that finally to boycott their own draft laws? If, however, PCRM will decide to boycott — it’s nothing dangerous about it. Temporal elasticity allows for eventual use of republican constitutional referendum, a solution tested on September 5, 2010.

In order to ensure that a possible referendum, initiated by AIE, would be a successful one, it is necessary to choose the right time and the wording of the question should be adequate. The best solution would be to start the question for the referendum in the following way: “Are you for overcoming the political crisis in Moldova, so that the president would be elected according to the following procedure… (exact print of PCRM proposal registered in the Parliament)”? Concerning the time to conduct the referendum, the best solution would be to hold it in early June 2011, on the day of local elections. There are several advantages in this respect:

If an eventual constitutional referendum fails, then the elasticity of time, along with the principle of consistency, would allow waiting for two years since the referendum of September 5, 2010 on direct presidential elections and its repetition in strict accordance with electoral legislation. During this entire period, until the final settlement of amending the Article 78, the political stability shall be ensured by clearly stated intention to get things finished.

Conclusions

Political year 2010 Results of elections in Gagauzia and the post-electoral situation