Notification of Constitutional Court
On December 26, 2011, independent deputy Mihai Godea, the only parliamentarian who respected the constitutional provisions on secret vote during presidential elections, notified the Constitutional CourtRO and asked it:
- To check the constitutionality of the Parliament Decision No. 266 of 23.12.2011 concerning the results of the ordinary election of President of Moldova;
- To declare the elections as unconstitutional and to confirm some procedures which seriously violated the Constitution;
- To declare the December 16, 2011 ordinary presidential elections in Moldova as null (like did not take place) because members of the Parliament gravely violated the secret voting procedure and the freedom of casting ballots and opinions.
The Constitutional Court gave green light to Godea’s application, noting that the public deliberation was set for January 12, 2012. To note that January 12 was the deadline for registration of candidates for the repeat presidential elections. The political and legal context of examination of the application was very complex. Earlier, starting 2000, all the tries to elect the chief of state except for one were boycotted:
The only exception was the first try to elect the chief of state on December 1, 2000. There was another attempt of party leaders then to keep control on the voting process — violation of the express provision of the Constitution which says that the chief of state is elected by the Parliament through a secret vote. In consequence, 13 deputies appealed to the Constitutional Court and asked it to interpret the provisions of Article 78 (1) of the Constitution in the light of:
- The combination “secret vote” from Article 78 (1) of the Constitution imposes the secret filling up of the ballot paper in the secret voting booth (room), so that not to reveal the willingness of the voter?
- The violation of the secret voting procedure by publicly filling up the ballot paper is a breach of Article 78 (1) of the Constitution and what are the legal consequences in this case?
- The non-adoption (non-approval) by the Parliament of the voting results established by the special commission after the violation of the secret voting procedure annuls the voting results in general, which means that the first round of elections did not take place and the election procedure must be resumed from the very beginning?
On December 4, 2000, the Constitutional Court decided under Decision No. 39RO that clauses of the following articles should be taken into account to interpret the expression “secret vote”:
- Article 38 of the Constitution;
- Article 52 (1), Article 54 (1) of the Election Code;
- Article 8 (1) of the Law No. 1234-XIV of September 22, 2000 “Concerning the procedure of election of the President of Republic of Moldova”;
- Article 21 of the Universal Declaration of Human Rights;
- Article 25 of the International Covenant on Civil and Political Rights signed by Moldova.
The Constitutional Court noted in its decision that the will of people is the base of state power, according to Article 38 (1) of the Constitution. This will is expressed through free elections which take place periodically through a universal, equal, direct, secret and free suffrage. The constitutional principles concerned are in full accordance with Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights, which say that the election of state authorities must be honest, must take place periodically though a universal, equal suffrage and secret vote, or accordingly to an equivalent procedure, which would ensure the free expression of will of electors.
In order to argue its decision, the Constitutional Court stressed in 2000 that:
- The election of the chief of state by the Parliament through another way but the secret vote is prohibited;
- The clauses of Article 78 (1) of the Constitution and Article 8 (1) of the Law No. 1234-XIV of September 22, 2000 have an imperative nature and must be respected to the letter by deputies of the Parliament who participate in election of the President of Republic of Moldova;
- It comes to that deputies of the Parliament must vote for candidates running for the seat of President of Moldova so that nobody could learn and influence their will;
- The logical-grammatical and systematic interpretation of the combination “secret vote” from Article 78 (1) of the Constitution allows the Constitutional Court to conclude that this collocation is a face of the right to vote and expresses the possibility granted to parliamentarians to manifest their free will with regard to candidates who run for the seat of President of Moldova, without letting others know this manifestation.
At the same time, the Constitutional Court refused to answer to the other two questions of deputies regarding the legal consequences of violation of “the secret vote” and the annulment of the voting results in general in the sense that the voting procedure must be resumed from the beginning. According to CC:
- Under Article 12 of the Law No. 1234-XIV of September 22, 2000 “Concerning the procedure of election of the President of Republic of Moldova”, the Constitutional Court alone considers the constitutionality of election of the chief of state and validates the results of elections;
- Article 17 (b) of the Law concerning the Constitutional Court denies categorically the CC judges to take a public stand or to advise with regard to issues related to the CC competences;
- If in this decision the Constitutional Court gives its opinion about the questions relating to the legal consequences of violation of the “secret vote”, the annulment of the voting results in general in the sense to resume the voting procedure from the beginning, this would mean that the Court takes a public stand on an issue which it could have to consider in future, and this action would violate Article 17 (b) of the Law concerning the Constitutional Court;
- The resolution of these issues rests with the Parliament only.
January 12, 2012 Decision of Constitutional Court
Deputy Mihai Godea extended the object of the application at the public plenary sitting of the Constitutional Court on January 12, 2012, and asked the court to check the constitutionality of the Parliament Decision No. 287 of December 28, 2011 on the scheduling of repeated presidential elections in Moldova.
After hearing the sides, the Constitutional Court inducedRO that:
- It was right to give green light to the application of Mr. Mihai Godea and demand of the Government to develop the conclusions of the Decision No. 39 of December 4, 2000;
- The Constitution does not provide any possibility to derogate the election of president from the secret nature of the vote;
- The Article 78 clearly indicates the will of the constituent legislator to apply this constitutional guarantee in all elections for the President of the Republic. This protection covers all actions from reception of ballot paper to introduction of ballot paper in the sealed ballot box, so that not to identify the expressed option;
- International organisations and instruments do not make a difference between guarantees of the secret vote while casting it during elections through a direct or indirect universal suffrage and during parliamentary sittings on individual nominations. These guarantees will be provided during all elections though secret vote, regardless of the type of suffrage;
- The secret vote is both a fundamental right and an obligation. Therefore, forswearing the right to the secret vote does not assoil deputies of the obligation to ensure the secret of the voting, or it cannot be receded;
- Electoral functionaries must stop any manifestation which violates the secret of the voting, including electors who show their ballot papers deliberately;
- The presidential election procedure on December 16, 2011 flagrantly violated the norms of Article 78 and Articles 1 and 2 of the Constitution of Republic of Moldova implicitly;
- The ampleness of these violations could decisively influence the final results of the ordinary elections for the seat of Moldovan President;
- As regards the application seeking the checking of constitutionality of the Parliament Decision No. 287 of December 28, 2011 concerning the scheduling of repeat presidential elections in Moldova, released during the public plenary sitting, it is in direct connection with the Parliament Decision No. 266 of December 23, 2011 concerning the results of the “ordinary” elections for President of Moldova, with “repeated” elections being set after the adoption of this decision.
In the light of these arguments, the Court concluded that the Parliament Decision No. 266 of December 23, 2011 concerning the results of the ordinary elections for the President of Moldova and implicitly the Parliament Decision No. 287 of December 28, 2011 concerning the scheduling of repeated presidential elections in Moldova will be declared unconstitutional.
Withdrawal from constitutional presidential election process
The AIE used the January 12, 2012 CC Decision improperly to adjourn the presidential election process, with the finality of this process changing direction. In this respect, one may affirm that the CC decision advantaged those who violated the Constitution, as AIE components are first to benefit of the breakdown of the presidential election process. The extraordinary sitting of the legislature convoked on January 15, 2012, which abrogated the two parliamentary decisions that the Constitutional Court declared as unconstitutional, as well as the withdrawal of the AIE from the constitutional president election procedure are proofs in this respect. The same day, AIE leaders adopted the statement concerning the ways to settle constitutional crisis and ensure political stability. By adopting this declaration, the AIE assumed responsibility for the following major objectives of the political agenda for next period:
- The No. 1 priority of AIE is finding a sustainable solution to the constitutional crisis, on which depends the further stability and development of the Republic of Moldova. All processes launched two years ago aimed at a real democratisation of society, integration of Moldova into the European Union, reintegration of the country, decent living standards for Moldovan citizens will be continued and completed only if the constitutional crisis is settled;
- For all these reasons, a referendum will be organised to modify the Constitution, and citizens will be able to remedy constitutional shortcomings which challenge endless political crises in the Republic of Moldova, through democratisation and simplification of the mechanism of election of the chief of state by the Parliament and transformation of the governing system into a true parliamentary system. The referendum will take place by April;
- The President of Moldova will be elected within one month after the validation of the referendum results. We reconfirm our attachment to the major interest of the Republic of Moldova to develop in a democratic manner and stable conditions, stressing all necessity of consolidating the Alliance for European Integration and focusing all efforts on implementing the Governance Programme, especially in terms of European integration, economic growth and people welfare.
The statement invited “all political forces to prove responsibility and political maturity and to help making conditions to overcome the impasse which obstructs the development of our country.” The preamble of the declaration indicates:
- The strategic goal of the Republic of Moldova to follow the course of democratic development and integration into the European Union in conditions of political stability;
- The commitment to act in strict accordance with interests of citizens, in the spirit of respect for the Constitution of Moldova and democratic principles;
- The deepening of the political impasse because of the constitutional deadlock and refusal of the parliamentary opposition to accept a reasonable compromise on election of President of Moldova;
- The recent decision of the Constitutional Court is irrevocable and annuls all ongoing procedures for election of President of Moldova;
- AIE made all moves needed to overcome the political and constitutional deadlock;
- Solutions to the political crisis capable to bring stability in Moldova were actually exhausted, inclusively because of systemic obstacles raised by some constitutional provisions;
- There is no way to settle the current crisis in the limits of the effective Constitution and when the parliamentary opposition does not want to help settling the crisis, but releases instead anti-constitutional calls, dividing and frenzying the society;
- The previous amendments to the Constitution of Moldova broke the constitutional nature, imposing a non-functional mechanism of election of the chief of state and unsettling the functioning of state institutions;
- The experience of regimes of committed parliamentary republics in Europe, where the president election mechanism ensures the election of the chief of state rather than blocks up in situations like those faced by Moldova;
- The serious system drawbacks mentioned above have repeatedly challenged early parliamentary elections (in 2001, 2009, 2010), leading to political crises, instability in society and huge unjustified expenses;
- Citizens expect the governance to elect a chief of state, rather than to hold early parliamentary elections, so that to ensure stability and the European course of Moldova.
In fact, the preamble of the AIE Declaration was an enumeration of untruths and half-truths, a manifestation of cynicism, aimed to justify the initiative of holding a referendum with the view to settle the political crisis:
There are precise answers to the untruths from the arguing part of the AIE Declaration:
- The strategic goal of the Republic of Moldova — the European integration — cannot be reached through AIE methods. On the contrary, such methods are contraindicated, since they compromise the rule of law and are in a direct, clear contradiction with the Copenhagen EU Membership criteria, particularly with the political criterion — the existence of some stable institutions to guarantee the democracy, the rule of law;
- The AIE decision to organise a referendum does not meet in the least the interests of citizens, in the spirit of respect for the Constitution of the Republic of Moldova and democratic principles, as said in the Declaration. First, if speaking about interests of citizens, their absolute majority call for a direct election of the chief of state. Second, the spirit of Constitution was neglected when AIE decided to withdraw from the constitutional presidential election process, a process which may have just two outputs — the election of the chief of state or the dissolution of the Parliament and organisation of early parliamentary elections. Third, AIE deputies voted the scheduling of presidential elections on October 20, 2011, but they did not register any candidate for the November 18-set election procedure and obstructed it, and they flagrantly violated the constitutional provisions on the secret voting, turning a constitutional process into a banal test of loyalty towards the AIE candidate at the December 16 elections;
- Saying that the political impasse and the constitutional deadlock are the result of refusal of the parliamentary opposition to accept a reasonable compromise is a groundless exaggeration. The PCRM parliamentary opposition did not participate in the December 16 procedure, motivating that it did not want to take part in the interlude of demonstration of loyalty of AIE deputies towards their candidate. Second, the PCRM did not nominate any candidate to run for the January 15 attempt, giving up the boycott;
- The conclusion that the decision of the Constitutional Court annuls all ongoing procedures of election of the President of Republic of Moldova is a unilateral interpretation of AIE. The Constitutional Court outlawed just the Parliament Decision No. 266 of December 23, 2011 concerning the results of the ordinary elections for Moldovan President. The Court decision is not contested, but it did not break up the election process. First, the special commission in charge with organising the presidential elections could meet after the court decision to identify the deputies who violated the voting procedure and to cancel their options. In consequence, the commission concerned could recommend the Parliament to adopt another decision with the purpose to establish that the AIE candidate won just one vote from independent legislator Mihai Godea. Anyway, the Constitutional Court could not prove that the violation of the secret vote obstructed the election of the chief of state. Contrariwise, the development of the voting by AIE deputies aimed to increase the chances of the AIE candidate to be elected. Thus, the conclusion that the respect for the secret vote would have brought a poorer result is logical. Second, the Constitutional Court had no right to outlaw on January 12, 2012 the Parliamentary Decision No. 287 of December 28, 2011 concerning the scheduling of repeated presidential elections in Moldova, as this decision was not published in Official Gazette but the next day, on January 13. By issuing such a decision, the Constitutional Court baffled the registration of the PCRM candidate for the repeated elections set for January 15, 2012;
- The claim that the AIE made all moves to overcome the political and constitutional deadlock is the most revolting untruth. All previous obstacles from 2000 to 2009 had origins in the lack of quorum. This time, the quorum was somehow guaranteed for the elections on November 18, December 16, 2011 and January 15, 2012, as the “Dodon group” assured that it wanted to unlock the procedure of election of the chief of state, intention confirmed on December 16. The problem was related to the choice of a compromise candidate, other than an AIE representative;
- Another untruth is that all the ways capable to settle the political crisis and to bring stability in the Republic of Moldova were actually exhausted. There were offers from some citizens to fill up the lack of apolitical candidates, as for example citizen Oazu Nantoi, who enjoyed a great public support. The Constitution, laws of Moldova do not say that the AIE representative only must be nominated, and his incapacity to win at least 3/5 votes of deputies cannot be described as a political and constitutional deadlock;
- The conclusion that there is no way to settle the current crisis in the limits of the effective Constitution and when the parliamentary opposition does not want to help settling the crisis, but releases instead anti-constitutional calls, dividing and frenzying the society has simply a propaganda purpose. Breakdown of the constitutional president election process, recurrence to feints and obstructions, as well as to modification of legislation with the purpose to make advantageous conditions are real facts amenable and explained by a number of decisions of the Constitutional Court. Even the recent CC decision commented above confirmed that the AIE violates the Constitution;
- In 12 years following the modification of Constitution in 2000 the Constitutional Court had never confirmed that the previous amendments to the Constitution of Moldova broke the constitutional nature, imposing a non-functional mechanism of election of the chief of state and unsettling the functioning of state institutions, as said in the AIE Declaration. Now the only problem is that AIE regards its candidate as the only one capable to be elected as President of Moldova, and this fact is clearly expressed by AIE leaders;
- The reference of AIE leaders to the experience of regimes of committed parliamentary republics in Europe, where the president election mechanism ensures the election of the chief of state rather than blocks up in situations like those faced by Moldova is improper, as political leaders from countries concerned try and succeed to reach compromises, avoiding to modify the Constitution so that to fit the regulations of an alliance of parties which share state functions among them, including the seat of chief of state;
- The affirmation that the serious system drawbacks mentioned above have repeatedly challenged early parliamentary elections (in 2001, 2009, and 2010), leading to political crises, and instability in society is true, but this truth has nothing to do with the current situation. There are public testimonies by the “Dodon group” and an AIE leader that AIE heads resorted to ruses to draw out three deputies from the “Dodon group” with the view to ensure the quorum and elect the chief of state in exchange for the withdrawal of the AIE candidate in favour of an apolitical candidate. Once the PCRM faction divided, AIE leaders ignored the deals and reintroduced their own candidate, so that the “Dodon group” was denied and cheated and had to face cruel truths. This action is a proof that some AIE leaders are underhand, and it limited more the capacity of reaching compromises;
- The claim that citizens expect the governance to elect a chief of state, rather than to hold early parliamentary elections, so that to ensure stability and the European course of Moldova is a perfect truth, but AIE uses it for an unfair reason. There is no evidence that citizens would like the governance to elect a chief of state after the AIE-planned referendum. Thus, it would be fair to hold the referendum on a par with early parliamentary elections, as an eventual referendum would automatically become a kind of plebiscite on confidence over AIE. Surveys reveal that citizens are very revolted with the AIE activity and do not warm the election of chief of state by parliamentarians.
Reaction towards AIE decision to organise constitutional referendum
The public opinion representing diverse segments of parliamentary and non-parliamentary political opposition, as well as civil society organisations had negative reactions to the AIE Declaration. The PCRM parliamentary opposition announced plans to hold civic insubordination protests. PCRM representative Sergiu Sirbu informed on January 18, 2012 that his party will sue Marian Lupu in the Prosecutor-General’s Office, as he instigated deputies to show their ballot papers and thus is to blame for the falsification of the December 16 elections. The same day, the PCRM parliamentary faction released a statement, reading that:
- The PCRM condemns the latest decisions and destructive actions of the Constitutional Court, which proved a complete lack of respect for the Constitution of Moldova, discredited the only supreme state authority, and turned into the forth component of the ruling alliance;
- The Constitutional Court flagrantly exceeded its competence and made bold of outlawing on January 12, 2012 the full procedure of election of Moldovan President, and this action is absolutely inadmissible. The court should find out breaches and intervene just to validate the mandate of chief of state, not before this process;
- The present composition of the Constitutional Court of Moldova lost the right to be called constitutional jurisdiction authority, while its actions and decisions discredited it in front of the nation. Judges who were accomplices of usurping the state power shall step down immediately;
- The PCRM faction, which represents the largest side of Moldovan society, withdraws any trust in this ignoble organ. From now on, the population of Moldova is the only constitutional jurisdiction authority in Moldova.
The same day, leaders and representatives of several non-parliamentary parties built the Committee on the Defense of Constitution and Democracy (CACD), which noted that “the state power was usurped in the Republic of Moldova, and this is the gravest crime against people. The demission of the incumbent authorities and the conduct of free elections are the only way to restore the sovereignty of people.” For this purpose, CACD claimed:
- The immediate dissolution of the Parliament and the convocation of parliamentary elections after the nomination of a new Central Election Commission (CEC);
- The demission of the Constitutional Court head;
- The cease of usurpation of state power.
With the purpose “to restore the constitutional order, CACD will organise peaceful protests.” In this context, CACD invited “all good-will people, civic organisations, all responsible political parties to join efforts against dictatorship of oligarchies.” The PCRM leader reacted to the CACD call immediately, assuring that his party will participate in protests until demission of the AIE government. The PCRM will not negotiate with AIE members anymore, and invited public functionaries not to give in to authorities, as acting governors usurped the state power.
The vehemence of protests of the parliamentary opposition in the person of PCRM and non-parliamentary opposition in the person of the Christian Democratic People’s Party (PPCD) and the Social Democratic Party (PSD) carries serious risks to further destabilise the political situation in Moldova, rather than to stabilise it, as claimed in the AIE Declaration. The announced protests may have a serious impact with the view to make AIE leaders hold the referendum, as the consent of the Constitutional Court will be required anyway. At the stage of preparation of the draft amendment to the Constitution and initiation of the referendum, key objections of opponents are based on previous decisions of the Constitutional Court, especially from 20.09.2011RO. Under the decision concerned, the Constitutional Court noted express that:
- The unity between leaders and the spirit of law must be ensured. The approached issues will be also elucidated in the light of the previous jurisprudence concerning the interpretation of Article 78 of the Constitution;
- The fundamental obligations of the Parliament are to elect the President of Republic of Moldova, while the incumbent President must dissolve the Parliament if the President of Republic of Moldova was not elected after repeated elections;
- The non-participation in the election of chief of state by a parliamentary majority which is made of 61 deputies according to the Constitution (Notice No. 4 of 26.12.2000RO) brings together the circumstances justifying the dissolution of the Parliament;
- The constitutional right of the President to dissolve the Parliament in such circumstances is a modality to react to the obstruction of repeated presidential elections. The chief of state has both the right to dissolve the Parliament, and is obliged by the Supreme Law to do so;
- The express regulation of the procedure of revision and completion of Constitution means avoiding interventions into constitutional norms according to situation.
Initiators of the protests against the AIE-planned referendum and those who called for the resumption of the presidential election procedure contested the AIE actions and statements in the light of findings from the CC decision explained above:
- Starting 2000, throughout ordinary and repeated attempts to elect the chief of state, the procedure was never adjourned with the purpose to modify the legislation. The spirit of the constitutional norm and of the law on election of the chief of state does not leave room for doubts that the procedure could be adjourned because the law would be unclear. Eight previous attempts to elect the chief of state denoted that the launching of the process concomitantly with the scheduling of elections may end with two results — the election of chief of state or the dissolution of the Parliament and announcement of early elections. Just on the ninth attempt launched on October 20, 2011 the breakdown and the withdrawal from the constitutional procedure on November 18, 2011 are accepted because parliamentary factions were not sure that their candidate would win the number of votes needed to be elected and did not register the candidate for this reason?!
- The law concerning the election of the chief of state was modified first and then the procedure was resumed from the beginning, and it ended with the violation of constitutional provisions on the secret vote. Further, the AIE majority adjourned the constitutional procedure for the second time, this time to modify the constitutional norm, so that to guarantee a convenient majority to the AIE to elect the candidate it wanted;
- The elusions of the AIE majority were orchestrated so that to try to speculate that no repeated voting was organised to elect the chief of state, while the Constitution stipulates the dissolution of the Parliament and the scheduling of early elections after an eventual failed voting. For these reasons, the procedure was adjourned twice to resume it from the very beginning. AIE would do so as many times as it likes, until it would guarantee the result it wants;
- The modification of the law concerning the procedure of election of the President of Republic of Moldova on 01.12.11 by introducing the paragraph 4 into Article 6 saying that “If less than 3/5 elected deputies participated in the election of President of Moldova, the elections are declared as they did not take place, and the Parliament will set a new date for elections within 30 days,” runs obviously against a norm set by the Constitutional Court, which says that “the non-participation in election of chief of state by a parliamentary majority which is made of 61 deputies according to the Constitution (Notice No. 4 of 26.12.2000) brings together the circumstances justifying the dissolution of the Parliament”;
- The incumbent president as candidate to the seat of chief of state is an interested person and does not react to the express finding of the Constitutional Court that “the constitutional right of the President to dissolve the Parliament under such circumstances is a way to react to the obstruction of repeated presidential elections. The chief of state both has the right to dissolve the Parliament, and is obliged by the Supreme Law to do so”;
- The breakdown of the constitutional presidential election process by the AIE majority openly contradicts the CC finding that “the express regulation of the procedure of revision and completion of the Constitution means avoiding interventions into constitutional norms according to situation.” Curiously, AIE resorts to the amendment of the Constitution for this reason, so that to elect a person it wants as chief of state, not somebody who would win the votes of the qualified majority of 3/5 deputies.
- The institutional crisis relating to the incapacity of the Parliament of Moldova to elect a chief of state in the last two years and half is based on the antagonistic polarisation of political scene, rather than on imperfect provisions of the Constitution. Once the deadlock relating to the boycott of presidential elections was relieved, another phenomenon emerged in November 2011 — the AIE refused to find compromise solutions, relying on legal artifices aimed to reach some arrangements inside of the alliance which neglect the realities;
- The AIE incapacity to find a compromise solution and elect the chief of state in the existing constitutional and legal framework turned this problem into a conflict which draws new division lines in society. Attempts of AIE leaders to leave the existing constitutional framework and build a new one accordingly to the AIE Establishment Agreement revolted a number of organisations and citizens who invoked the need of defending the constitutional principles of the state based on the rule of law against AIE abuses;
- The recurrence to a referendum aimed to modify the Constitution, accordingly to a formula unknown by majority of Moldovan citizens — the election of the chief of state by the Parliament with a simple majority — carries major risks for political stability and development of Moldovan democracy. Given the increasing revolt of population with social-economic conditions, development of cleavages after division of society on multiple criteria, the breakdown of the constitutional president election process to adapt the constitutional framework to needs and capacities of AIE undermines the legitimacy of the AIE rule, amplifying the rightfulness of people’s protests;
- The alternative of holding the referendum announced by AIE leaders is to go back to the effective constitutional framework and to finish the president election procedure, as there are real premises to identify compromise candidates capable to win the necessary number of votes stipulated by Article 78 of the Constitution. In these conditions, this solution seems to be the only one capable to defuse the social tensions and normalize the situation;
- The eventual insistence of AIE components to hold a referendum on modification of Constitution runs the risk to compromise seriously the European integration process of Moldova. If after the profanation of the “success story” which was written by Moldovan Government and EU and promised great prospects, the principles of the state based on the rule of law are profaned because of vanities and ambitions of AIE leaders, perspectives of Moldovan society will be very gloom and AIE will carry all blame.