ADEPT | Gagauzia 2016 | Presidential 2016 | Elections 2015 | Bashkan 2015 | Gagauzia 2012 | Political Parties
Modification of electoral legislation shortly before local elections
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On 9 April 2015, the Parliament approved, by Law no. 36 and Law no. 61, amendments to the Electoral Code and to other five codes and laws referring to elections and electoral subjects. The majority of amendments are welcome, but some of them are confusing and inopportune. Also, it should be mentioned that the amendments were made after 3 April, when the Parliament set the date of general local elections. Specialized international institutions recommend that electoral legislation be modified at least six months before the electoral campaign, so that legislative changes do not affect the planning of parties’ campaigns. Obviously, ad-hoc modifications should be allowed, if they improve the electoral process and are not challenged by potential electoral contestants. The modifications of 9 April broadly meet these criteria, but there still are negative aspects that should be mentioned.
The main amendments refer to extension of competences of the Central Electoral Commission (CEC) and to the funding of electoral contestants’ electoral campaigns. In fact, the extension of CEC competences derives from the need to detail the funding of electoral contestants’ campaigns and to establish strict control of the origin of parties’ funds. Clearly, it is inexplicable that governing parties and their supporters proceeded to settling this problem only after the emerging opposition parties proved at the parliamentary elections in November 2014 and at the recent regional elections in Gagauzia that they have access to sufficient financial resources to beat the governing “rich parties”, which have, along with excessive financial resources, administrative and media advantages. Therefore, intervention into electoral legislation after the announcement of the election date is not accidental.
Extension of CEC competences in the verification of the funding of parties and their electoral campaigns is undoubtedly a positive thing, but it raises a number of conceptual problems. When the Electoral Code was adopted in 1997, its provisions divided CEC members into two categories — three permanent members and six members convoked for the period of electoral campaigns. This approach was motivated by the lack of funding and the need to save public money. In recent years, the CEC has become a real institution, with sufficient funding from the budget and with impressive resources provided by international aid. As a result, both the members’ professionalism and the institution’s internal structure grew and developed. The legitimate conceptual question is why the law cannot be modified so that all nine members of the CEC work permanently. If the CEC has 6 departments and several subdivisions, why cannot they be run by nominal members of the CEC? Basic calculations show that such a normal approach would lead to optimization of the CEC activities and to saving public money. There would be no need in the 35% increase of salaries for non-permanent members of the CEC during electoral periods, and no discomfort caused to this category of the CEC members by relief from their permanent jobs.
In terms of the modifications concerning the funding of electoral campaigns, it should be mentioned that chapter four of the Electoral Code, which previously referred to only the material support of electoral campaigns, has been substantially reviewed. The main modifications refer to the following:
Funding of political parties and electoral campaigns only from the funds “originating from employed work, entrepreneurship, scientific work or creative work conducted on the territory of Moldova” (Article 38 para 1). According to article 38 para 3 letter c, it is prohibited for citizens of Moldova to provide funding or any type of material support, direct and/or indirect, for the activities of political parties, electoral campaigns/electoral contestants from the income that they obtained abroad. So, the over half a million Moldovans who work abroad cannot use their financial resources that they earned from legal activities abroad in order to eventually fund their own campaigns, for example for the office of mayor or local councilor;
Permission to collect financial resources in cash (article 38 para 3 letter h) might produce confusion. Thus, donations offered by individuals in cash shall be accompanied by a form, attached to the accounting documents of the supported electoral contestant. The design of the form on cash donations shall be approved by the Central Electoral Commission. The problem is that amendments in no way suggest what exactly parties are allowed to do with cash donations. The text of the law implies that cash donations cannot be used for contestants’ electoral campaigns, unless they are transferred to the party’s account and then to the electoral fund. This conclusion results from article 38 para 4, according to which all expenses on electoral campaign shall be covered from the funds on the account titled “Electoral Fund”;
Prohibition for legal entities to make cash donations. They can only transfer money onto the “Electoral Fund” account, accompanied by an explanatory note about the absence of state share, foreign share or mix share in their statutory capital and by a declaration under oath about the absence of relevant restrictions. Therefore, cash donations are only allowed from individuals;
Excessive thresholds on donations from individuals and legal entities on the “Electoral Fund”. For an electoral campaign, donations from individuals and legal entities shall constitute 200 and 400 nationwide average monthly salaries set for the year in question, accordingly (article 38 para 2 letter e). It should be mentioned that at the stage of adoption of modifications by the Parliament, the thresholds were increased tenfold from the level set in the draft law. Basic calculations show that in 2015 the nationwide average monthly salary is about 2,415 lei, so the electoral legislation allows individuals to support contestants’ electoral campaigns with money up to half a million lei, and legal entities — up to one million lei. Countries with established democracies use the same quite clear criterion to set the amount of donations for parties and elections, based on the amount of the average salary. There, however, donations are commeasurable with the average salary. And it is clear why. Because eventual funding of parties from the public budget is calculated based on private accumulations, which grow due to the multitude of donors and not to excessive amounts of donations. In Moldova, a 200-fold discrepancy is allowed. And again, it is clear why. Governing parties in Moldova produce financial reports, indicating that dozens of party supporters with declared annual salaries of 20 thousand lei donate 200 thousand lei to their favorite parties during electoral campaigns. It is obvious that this situation defies common sense. Nevertheless, instead of repairing this situation, the opposite is done; the situation is worsened for the sake of Moldovan political moguls’ interests. It is curious that the allowed funding of electoral campaigns is measured in hundreds of minimum salaries, while punishments for eventual violations of funding rules are measured in hundreds of conventional units, which are dozens of times smaller. So, we might say that there is some kind of encouragement of fraud;
Creation of new gaps for seemingly legal funding of campaigns by Moldovan political moguls. For what otherwise could be used admission of cash donations, described above, to fund electoral campaigns, if the electoral contestant that fails to open an “Electoral Fund” bank account … conducts only campaigning activities or electoral promotion that does not involve financial expenses (article 38 para 2 letter c)? It is clear that the cash received by parties should be deposited onto party accounts (into their electoral funds), but no one can guarantee that parties will do so. In such conditions, it is unclear what the sense of the cash donations is if they cannot be taken into consideration as long as they are not deposited into the electoral fund. It is an example of how Moldovan political moguls are being provided with legal gaps in order to use in their electoral campaigns the millions “from employed work and other legal activities”;
The method of reporting expenses on electoral campaigns. Article 382 describes in detail the procedure of electoral contestants’ reporting to the CEC their campaign funding. It is extremely important and opportune.
The law on modifying the Electoral Code also introduced modifications to the Criminal Code, the Contraventions Code, the Broadcasting Code, the law on the Court of Accounts and the law on political parties. All these modifications may be considered welcome, except the ones to the law on political parties, which need separate examination.