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Impact of the incapacity to elect the chief of state on Moldova’ European integration process (part I)

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Igor Botan / January 16, 2012
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Introduction

The relations of the Republic of Moldova with the European Union (EU) are based on the Partnership and Cooperation Agreement (PCA) until the drafting and signing of the Association Agreement, which is expected to set up a new framework aimed to let Moldova join the economic area and become a political associate of the EU. At least 3–4 years are needed for this purpose. Meanwhile, the Republic of Moldova will have to implement the Visa Liberalisation Action Plan, and to work out and adopt the Deep and Comprehensive Free Trade Agreement. At the same time, the Republic of Moldova must move away the arrears it has left aside since the implementation of the EU-Moldova Action Plan in 2005–2008, but preserve and advance in the fields it has made progress.

Despite great accomplishments in relations with the EU, starting 2009 the Republic of Moldova failed to settle the institutional crisis, which turned into a true political crisis. Surveys revealed spectacular developments in the period concerned — from a great rise of social optimism on autumn 2009 to a dramatic decline in 2011. At the same time, the trust in central state institutions has dramatically dropped, almost twofold, and the incapacity of parliamentary parties to elect a chief of state came out on top of major concerns of people.

The incapacity to elect a chief of state in almost two years has a direct impact on Moldova’s European integration process. The decline of people’s trust in key democratic institutions — the Parliament of the Republic of Moldova, the Constitutional Court, and the judiciary in general — was in a very deep correlation with the decline in European aspirations of Moldovan citizens by approximately 15–20 percent.

Nomination of President inside of AIE-2

The Alliance for European Integration (AIE-2) was built after the November 28, 2010 early elections. The agreement stipulates expressRO the modality of establishment of leading state organs:

“Following the results of the November 28, 2010 elections, the key state offices will be shared as follows: the Liberal-Democratic Party of Moldova (PLDM) will get the function of Prime Minister (Vladimir Filat), Democratic Party of Moldova (PDM) for President (Marian Lupu), Liberal Party (PL) for Speaker (Mihai Ghimpu). Under a PL agreement, the PDM will temporarily rule the Parliament until a chief of state is elected. The following sequence in establishing the leading state bodies was proposed: the election of the Speaker (M. Lupu), the nomination of the Prime Minister (V. Filat) and the investiture of the Government, the election of the President of the Republic of Moldova and the re-election of the Speaker (M. Ghimpu).”

Under the AIE Founding Agreement, Mr. Marian Lupu was elected speaker of the 19th Legislature on December 30, 2010, and the Government headed by Premier Vlad Filat was vested on January 14, 2011. The election of chief of state was preserved in the top of pressing problems of political life by the opposition Party of Communists of the Republic of Moldova (PCRM), which insisted on the immediate election of the chief of state. In order to unlock the election of chief of state when AIE held just 59 out of 61 necessary votes, the PCRM invited the AIE to build a broad coalition. For this purpose, PCRM deputies Serghei Sirbu and Artur Resetnicov apprised the Constitutional Court (CC)RO on January 24, 2011 to interpret Article 90 (4) of the Constitution in the light of two aspects:

The applicants were sure of the logic of constituent law giver, which by introducing a special norm to set a deadline for election of chief of state hinted that a possible interim cannot be endless, so that the Parliament has to elect the chief of state in a limited term. They thought that the constitutional norm explained by Article 90 (4) should be interpreted when heads of two consecutive legislatures ran the interim office of chief of state successively, and this situation could be reproduced in future.

In fact, the applicants sought a confirmation from CC that the procedure of election of chief of state was due to begin no later than two months since the head of the newly elected Parliament took over the interim office of president.

CC Decision and Address from 8.02.2011

On February 8, 2011, CC issued the Decision No. 2RO explaining that it could not bring in a verdict concerning the applicability of the two-month deadline stipulated by Article 90 (4) of the Constitution in terms of introduction of the successive interim office of chief of state, since the Constitution does not regulate such a situation. For this reason, the CC suspends the process of interpretation of the excerpt concerned from Article 90 (4) of the Constitution. In this train of thoughts, CC decided: “the Article 90 (1) of the Constitution says that the office of President of the Republic of Moldova becomes vacant when the mandate is over, in case of demission, resignation, definitive impossibility to fulfil tasks or death. The Article 90 (4) of the Constitution is applicable just in cases stipulated by the Article 90 (1) of the Constitution.” In other terms, the incumbency to elect the chief of state within two months is effective just in the case the position of President of the Republic of Moldova becomes vacant when the mandate is over, in case of demission, resignation, definitive impossibility to fulfil tasks, or death. It is not applicable in case of successive takeover of interim office of chief of state by Speaker or Prime Minister.

Under the same decision, the CC issued an address to the legislature, noting that “the pertinent legislation drafted after the Constitution of the Republic of Moldova was updated under Law No. 1115-XIV of 05.06.2000, which empowered the Parliament to elect the President of Moldova, does not clearly regulate the procedures to be undertaken in case of legal situations relating to the new modality of election of the chief of state. Therefore, more than 10 years since the Parliament elects the President of the Republic of Moldova the legislation does not regulate the modality of handing over and taking over the responsibilities of President, the mechanism of setting up the interim president office in case of vacancy and early end of presidential mandate, as well as the president election particularities in case of introduction of interim office and successive interim office. For all these reasons, under Article 79 of the Code of Constitutional Jurisdiction, the Court considers the resolution of these problems as opportune. Under Article 281 of the law concerning the Constitutional Court, the Parliament will consider the address and will notify the Court with the results within 3 months.”

Hence, the majority of the 19th Legislature was granted a couple of months to find a solution to the president election issue, in line with the AIE-2 Founding Agreement. In principle, the time was over on September 28, 2011, when one year was marked since the last dissolution of the Parliament, according to Article 85 (3), which says that “The Parliament may be dissolved only once in the course of a year.” Since any solution to elect the chief of state accordingly to the AIE-2 Agreement meant persuading at least two PCRM deputies to vote the AIE-2 candidate, the parliamentary majority forgot the CC Address and focussed all efforts on overcoming the deadlock. On April 6, 2011 three deputies representing the AIE-2, Mihai Ghimpu, Tudor Deliu and Raisa Apolschii, applied for the interpretation of Article 78 of the ConstitutionRO. The applicants sought the elucidation of the following aspects:

During public debates on their application, AIE-2 representatives explained what they were looking for: the CC was expected to give green light to the parliamentary majority to adopt an organic law allowing the election of the President with a simple majority of at least 1/2 votes, because of the successive impossibility to elect the chief of state with a qualified majority of at least 3/5 votes of deputies. In other terms, their application was based on the premise that when Article 78 of the Constitution does not allow lawmakers to elect the chief of state in accordance with the AIE-2 Agreement, which is just a formal deal of leaders of the three parliamentary parties which make the majority, the agreement concerned is not modified, but a derogation from the express constitutional norm is tried via an organic law?!

Recommendations by Venice Commission

Under these circumstances, the Constitutional Court decided on April 19, 2011 to ask the advice of the Venice Commission regarding the application by the three AIE-2 representatives. At the 87th Plenary Session on June 17–18, 2011, the Venice Commission adopted an Amicus Curiae Brief warning that Article 78 of the Constitution of Moldova shall be interpreted with caution, as “generally, there are some restrictions in the Constitution regarding the dissolution of Parliaments. These restrictions are necessary in a move to prevent political instability. The Constitution of Moldova is not an exception in this respect.” Genuinely, if the AIE-2 fails to elect the chief of state, the Parliament would be dissolved for the third time in two years only. However, the Venice Commission notes that “the problem of the majority needed to elect the chief of state is essential, a fundamental criterion to validate the elections. This criterion is clearly imposed by the Constitution and an organic law. Therefore, this is a constitutional principle that must be respected in the new situation, too (that means in the new situation created after the early parliamentary elections which followed the precedent failure to elect the chief of state); thus, an organic law cannot neglect in principle the regulation that the chief of state must be elected by a qualified majority of at least 3/5 votes. This majority may be modified just via a constitutional amendment which could be adopted in line with the Constitution (that means with the votes of 2/3 deputies).” In conclusion, the Venice Commission is of the opinion that:

Although the Venice Commission released more than clear findings, the conclusion regarding the possibility of textual or functional interpretation of Article 78 by the Constitutional Court fuelled the optimism of AIE-2 members that if an organic law cannot replace the 3/5 majority stipulated by the Constitution with a ½ majority, the desire to do so could be enough. In consequence, the AIE-2 did not do anything to find a solution but expected the Constitutional Court to do so.

CC Decision of 20.09.2011 and its consequences

On September 20, 2011 the CC issued the Decision No. 17RO which actually reiterated the Venice Commission’s conclusions:

Thence, the CC preferred the textual interpretation of the Constitution and avoided the functional one, despite expectations of two out of three AIE-2 members, PDM and PL. The September 20, 2011 CC Decision is prominent due to some very clear formulations, such as:

The uncompromising formulations from the CC Decision No. 17 gave birth to very subtle interpretations. On one hand, they targeted at the separate opinion of CC judge Victor Puscas, who disagreed with the textual interpretation of Article 78 in the detriment of the functional interpretation. On the other hand, CC head Dumitru Pulbere stated shortly after the CC sitting that the interpretation of the CC Decision signed by himself shall lead to the conclusion that after September 28, 2011, a year since the precedent dissolution of the Parliament, the acting legislature will be legally dissolved, as it did not do anything to elect the chief of state, despite the February 8, 2011 CC Decision No. Ag-5RO on the dismissal of Mr. Dumitru Pulbere from the CC head office “over the distrust vote.” The CC Decision No. Ag-5 explains: “Judge Victor Puscas proposed the plenary sitting to grant a distrust vote to Mr. Dumitru Pulbere and to dismiss him from the office of head of the Constitutional Court for the following public statements which unfit the constitutional norms:

By delivering these statements, Mr. Dumitru Pulbere has allegedly exceeded his tasks of head of the Constitutional Court, hitting the CC image in front of public authorities.”

The CC decision to recant the CC head’s opinion had important political consequences, leaving room and giving more time to AIE-2 to find a last solution aimed to elect the chief of state.

Scheduling of presidential elections. From zeitnot to deadlock

Conflicts inside of the AIE-2 in 2011 had a decisive impact on postponement of a solution to elect the chief of state in accordance with the AIE-2 Establishment Agreement. The apogee of the conflict inside of AIE-2 was reached on October 13, 2011, when Premier Vlad Filat released during the plenary sitting of the Parliament his report on the July 2011 “raider assaults” against the banking system. His report was wanted to help struggle the causes of “mafiotisation” of the country. The PCRM faction also subscribed to the initiative by voting together with the PLDM the Decision No. 197 concerning the activity of state authorities, which:

The PDM and PL factions regarded the voting of the Decision No. 197 by PLDM and PCRM as a “watermelon ripening” proof that means preparation for an eventual PLDM-PCRM coalition. With the purpose to baffle the enforcement of the Parliament Decision No. 197, the PDM decided to back the constant demarche of the PCRM seeking the scheduling of presidential elections. Thus, PDM leader Marian Lupu told deputies on October 20, 2011 at the beginning of the parliamentary sitting that they will consider the reiterated PCRM initiative on scheduling of presidential elections. After a hesitant intervention of PLDM faction leader Valeriu Strelet, the PCRM, PDM and PLDM factions voted two decisions: No. 199 concerning the scheduling of election of the President of Republic of Moldova for November 18, 2011; and No. 200 concerning the special commission in charge with conducting the election of the President of Republic of Moldova.

The Parliament Decision No. 199 concerning the scheduling of presidential elections was a common political manoeuvre rather than a responsible action aimed to settle the political crisis which lasts for more than two years and half. In fact, the Decision No. 199 concerning the scheduling of presidential elections, which aimed to reveal the strategic goal of electing the chief of state and “neutralise” this way the tactical purposes of Premier Filat — to depoliticise the law enforcement and security organs — was actually adopted with the purpose to suspend the Parliament Decision 197. This goal was immediately revealed, as Premier Filat had to admit that the governmental reshuffles and the demission of Prosecutor-General cannot be priorities any longer if the president election procedure is launched, as it requires a minimum consensus between AIE components. In fact, no consensus had ever been reached. Literally, none of AIE components wanted to assume responsibility for failure to elect the chief of state or for undermining of AIE “unity”, should early parliamentary elections take place. That’s why the PLDM hurried up to announce that, accordingly to the AIE Establishment Agreement, Marian Lupu stays the AIE candidate for the seat of chief of state, though PLDM leader Vlad Filat had earlier alleged that Lupu would be a tool in hand of the “jigger”.

Two weeks after the presidential elections were scheduled it was found out that none of parliamentary factions wanted to nominate any candidate for the seat of chief of state. As the start of the presidential election procedure is a kind of “race against the clock”, and once the regular time is over the chief of state should be elected or repeated elections should be announced, the Parliament should be dissolved if elections failed, and the announcement of early parliamentary elections was inevitable, the conclusion was clear — the AIE was facing a zeitnot (time emergency). This happened because the candidate to the seat of president, Marian Lupu, failed to persuade or to convert at least two PCRM deputies to support him. Under these circumstances, Lupu said that he could not apply for the seat of president, as long as he is short of at least 61 signatures of deputies, the equivalent to the minimum number of votes needed to elect the chief of state. On the other hand, the PCRM decided not to nominate its candidate, though it said from August to October 20, when the elections were scheduled, that it would nominate Zinaida Greceanii, former prime minister and PCRM candidate who ran for the seat of chief of state in May and June 2009. It was not hard to understand the PCRM game. Hiding itself behind the necessity of avoiding early parliamentary elections, the PCRM was looking for ways to make them real. PCRM leader Vladimir Voronin confirmed this goal during a TV programme.

The zeitnot turned into a deadlock, as the AIE candidate did not find the two votes of the opposition to support him, while the opposition did not nominate any candidate. In that situation, the solution came from PCRM deputies Igor Dodon, Zinaida Greceanii and Veronica Abramciuc, who held a news conference on November 4, with ten days before the deadline for registration of candidates for the seat of chief of state, and announced their withdrawal from the PCRM faction and their readiness to help unlocking the situation relating to presidential elections. With the view to get rid of the deadlock, the leader of the three-member group, Igor Dodon, conditioned the participation in the voting with:

AIE leaders and Igor Dodon discussed possibilities to find a compromise candidate. Finally, AIE insisted on candidacy of Marian Lupu, while Igor Dodon proposed Mrs. Zinaida Greceanii or other apolitical candidate. When the deadline for registration of candidates was over the special commission found out that no candidate was nominated to run for the most-desired seat in the state. Therefore, the special commission decided that the November 18-scheduled elections could not take place because the law on election of chief of state does not regulate the situation when no candidate is registered. In this respect, the Parliament adopted on November 18 the Decision No. 216 concerning the election of the President of Republic of Moldova with the purpose:

Modification of legislation during regulated process

In a move to get rid of the impasse, the AIE parliamentary majority decided to modify Law No. 1234-XIV concerning the procedure of election of the President of Republic of Moldova. According to drafters, the amendments were necessary to settle some unplanned and unregulated situations. Thus, the Law No. 232 of 01.12.11 stipulates:

According to certain AIE leaders, these amendments aim to perpetuate the uncertainty as long as the ruling alliance needs. “If Marian Lupu, for example, is not sure that he will be elected, he will not apply again, or if already registered as a candidate, his supporters in the Parliament, all or some of them, will not participate in elections for objective and grounded reasons. Thus, the elections could take place at the end of the Parliament’s mandate.”

The PCRM opposition protested against violation by AIE of generally accepted practices prescribed in the latest recommendations and regulations of the Venice Commission and the Report concerning the terms and political criticism for election assessment, adopted at the 84th Plenary Session on October 15–16, 2010. In particular, it indicated the Code of Good Practices in Electoral Matters, especially with regard to:

As usually, protests of the opposition and query of the expert community with the AIE approaches were ignored. On December 2, 2011 the Parliament adopted the Decision No. 239 to set the elections for the President of Moldova. Under the decision concerned:

Hence, the Parliament Decisions No. 216 and 239 said that the president election process was launched on October 20, interrupted on November 18, and resumed on December 2. Even more, the modification on December 1 of the law concerning the procedure of election of the President of Moldova opened the door to the possibility of interrupting and restarting the election procedure as often as the AIE needs, until the alliance will be able to elect a person it wishes, including with the votes of either deputies from the “Dodon group” or some members of the PCRM faction.

December 16, 2011 attempt to elect the chief of state

The attempt to elect the chief of state on December 16 marked a new approach of AIE. The constitutional presidential election procedure was turned into a loyalty test this time. On one hand, PLDM leader Vlad Filat insisted that the AIE Establishment Agreement shall be completed with an annex to guarantee a minimum governmental stability after the eventual election of the chief of state, in the sense that the PDM will not give up the AIE Agreement and will not make a new parliamentary majority with the PCRM. The annex was signedRO on December 16, 2011 a couple of hours before the president election procedure was launched, containing the following 6 clauses:

The AIE parliamentary members decided to support candidate Marian Lupu. Lupu told a TV programme that he “will respectfully ask” AIE deputies to be loyal with him and show their ballot papers to their party fellows and journalists before introducing them into the box. In this respect, AIE deputies and their lawyers developed a theory around the following phrase from Article 78(1) of the Constitution: “The President of the Republic of Moldova is elected by the Parliament through a secret vote.” They noted that the secret vote is a right, not an obligation, and the “respectful demand” to disclose the secret vote would not violate the constitutional norm.

Sixty-two out of 101 deputies participated in the December 16 elections. This time, the PCRM faction attended not even the festive sitting of the Parliament dedicated to the election of the chief of state. Almost all deputies representing the AIE parliamentary factions except for unaffiliated parliamentarian Mihai Godea and the “Dodon group” demonstrated the way they voted when exiting the secret voting booth. Following results were registered:

Immediately after the counting of the voting results, PDM leader Marian Lupu, the only candidate to the presidential seat, promised to run for the repeated elections, too, which should take place within maximum 30 days after the first failed attempt. Lupu’s statement surprised Premier and PLDM leader Vlad Filat, who replied immediately: “I heard Marian Lupu saying that he will run for the repeated elections. The annex was signed for today, but we will see next time… The key position of AIE is to come with guaranteed votes to the repeated elections.” Premier Filat’s statements made PL leader Mihai Ghimpu reply that Marian Lupu will run for the repeated elections, too, on behalf of the AIE.

The Parliament adopted on December 23 the Decision No. 266 concerning the results of the ordinary elections for the seat of President of Moldova:

On December 28, the Parliament adopted the Decision No. 287 to schedule the repeated election of the President of Moldova, as follows:

The same day, on December 28, Marian Lupu said that he would not run for the repeated elections. Coalition partners were surprised with his decision, while the PCRM parliamentary opposition was revolted, invoking the orchestration of a new expedient with the purpose to deliberately slow down the election of chief of state. In his turn, Marian Lupu replied: “I expected a reverse effect if I leave the race, I thought the opposition would be happy and ready to help finding a compromise candidate. Well, my dear, let’s go to dialogue, work, coordination.”

AIE in zeitnot Impact of the incapacity to elect the chief of state on Moldova’ European integration process (part II)