Was the “national consensus” rescued?

Cristian Untila / July 29, 2005

Orange evolution quota — 70%

A very strange thing could be outlined during latest debates within sittings of the Parliament, broadcasted live on television and radio — the representatives of the Our Moldova Alliance faction excel in criticism against actions and drafts of the Government. The representatives of the Christian Democratic People’s Party (PPCD) and Democratic Party (PD) demonstrate a more lenient attitude towards drafts promoted by the parliamentary majority. This attitude is partly accountable through the “national consensus” established at the beginning of activity of the acting legislature, as well as due to gradual fulfilment of several conditions imposed by the PPCD faction in order to reelect President Voronin.

Thus “national consensus” is the Moldovan alternative to “orange revolution”, while socio-political developments within the “consensus” framework are perceived as “orange evolutions”. Following of the fundamental conditions for a “national consensus” were fulfilled by the end of the summer session of the Parliament: a) live broadcasting of plenary sittings of legislature on radio and television; b) publication of records of plenary sittings on the official website of the Parliament; c) agreement of the Government to give up quality of founder of newspapers Nezavisimaya Moldova and Moldova Suverana; d) modification of the law on Superior Council of Magistrates; e) modification of the law on the Chamber of Auditors; f) modification of the Election Code; g) modification of the law on the domestic security service SIS.

Under these conditions, the opposition can be sure that persons and functionaries who will work in compliance with requirements and criteria regarding depoliticizing of law, inspection and security bodies will be promoted to these institutions.

However, the Parliament failed to adopt a new Audiovisual Code, to modify the laws on prosecutor’s office and local public administration, and these are conditions included in the set of initial demands. Even more, the parliamentary majority representatives did not want to cede in some very important issues of principle, and insisted that the person they have proposed be elected as chairman of the Supreme Court of Justice for a new mandate, in spite of protests of PPCD. Thus, only about 70 percent of opposition’s demands were fulfilled. Amendments to the legislation have a principle nature and it can be said that the “national consensus” remains in effect for the time being, especially after the almost unanimous adoption of the law on key provisions of the special juridical statute of settlements on the left bank of the Dniester river by the Parliament.

Law on modification of legislative documents on justice

The law adopted recently by the Parliament in two readings aims to establish new regulations on organisation of justice and regulation of status of judge. Its declared goal is to strengthen the independence of judges and autonomy of judiciary system.

Essence of amendments:

obligation of the chief of state and Parliament to motivate the refusal to appoint the chairman and deputy chairman of courts and courts of appeal or the Supreme Court of Justice only from grounded reasons of incompatibility, violation of legislation or violation of selection and promotion procedure. If the Superior Council of Magistrates proposes again the same candidate after a first rejection, the president will have to issue a decree or the Parliament will have to pass an appointment decision within 30 days after presentation of the repeated proposal. The law says nothing about what would happen if the Parliament or chief of state do not issue the necessary decision or decree. The regulations in effect do not stipulate any juridical responsibility for the chief of state or parliamentarians and it means that this issue is rather reserved for politics;
obligation of the chief of state to motivate his refusal to name judges of courts or courts of appeal or to appoint to offices before expiration of age limit, only if he holds cogent evidence of incompatibility of candidate or judge who runs this office, violation of legislation or legal procedures of selection and promotion of candidate or judge. The law fails to explain the nature of incompatibility of a candidate to the judge post, as long as he is not named to this post and can run any public or private function, and the incompatibility may stop only after appointment to the office of judge. When the Superior Council of Magistrates comes with a repeated proposal, the chief of state will issue a decree on appointment to the post of judge or appointment to this post till expiration of the age limit within 30 days after reception of the repeated proposal.

Amendment of the law on Superior Council of Magistrates

The law contains two key elements:

Modification of mode of constitution of the council. Seven out of 12 members of the Superior Council of Magistrates will be elected by the Moldovan General Assembly of Judges through secret vote, while the Parliament will elect two members among entitled professors — one at the proposal of the parliamentary majority and another one at the initiative of the parliamentary opposition. The law says that the judges elected by the General Assembly of Judges will be temporarily transferred on basis of the rotating principle, by three members at once for a one-year period. At present, the Superior Council of Magistrates is created the following way: the Supreme Court of Justice Plenum elects two judges, the meeting of judges of courts of appeal names another two, the meeting of judges of courts appoints two members, and the Parliament names three entitled professors. The Supreme Court of Justice head, justice minister and prosecutor-general are members of the Superior Council of Magistrates;
Status of the General Assembly of Judges. Under the law, the General Assembly will ensure the implementation of the principle of self-administration of judiciary power, holding the exclusive competence to elect seven members of the Superior Council of Magistrates. Also, the assembly will not be able to pass any other decision on organisation of the judiciary power. The assembly will hold a meeting within four years and it will be deliberative, if at least 2/3 of the total number of judges attend it, and if there is evidence that the judges who do not attend it were announced beforehand about this meeting. A new public self-administration body was created indeed through these norms, without consulting the judges who will have to ensure its activity. Under the effective provisions of the law on the Superior Council of Magistrates, this body is an independent body created for organisation and functioning of the judiciary system, a guarantee of independence of judiciary authority, made up to exert the judiciary self-administration. Respectively, the norms which award the right to self-administration to the Superior Council of Magistrates and General Assembly will be in situation of conflict. The draft has initially proposed that the new members of the Superior Council of Magistrates be elected within three months after enforcement of this law, but this would affect the mandate of acting members elected for a longer term.

Law on modification of legislative documents on domestic security service SIS

The amendments awarded new competences to SIS, in particular: a) protection of state secret; b) creation, functioning and insurance of security of governmental telecommunication systems; c) conduct of anti-terrorism actions.

Also, the SIS was deprived of the right to conduct penal investigations and to hold a temporary detention facility. The law did not introduce any regulations on demilitarisation of SIS, nor it contains any norms which would serve as base for a future lustration law through disclosure of secret agents of the totalitarian regime. Also, the law did not introduce any new regulations on limitation of information for the “state secret” category, though abuses in this sector had earlier been signalled. These amendments had a superficial nature and called indeed only for suppression of penal investigations for several offences which rested with the SIS competence.

Law on modification and completion of the law on Court of Auditors

The law on the Court of Auditors was completed with a set of norms regarding:

the goal of the law is to ensure respect for the mode of creation, administration and use of public financial resources; insurance of legal use and in compliance with destination, under conditions of saving, efficiency of public estate, etc;
explanation of several notions: thematic control; policies from governing programme; control procedures, findings, control tests, etc;
presentation of a report to the parliament: every year, regarding administration of state budget, covering the registered shortcomings as well. The report will be examined at a special sitting of the parliament;
principles of financial control activity of the chamber: responsibility; objectivity; independence; competence; clear communication; transparency, etc. An additional control on administration of financial resources may be carried out at the demand of every parliamentary faction, once in a trimester;
the status of the Chamber of Auditors members: 3 members will be elected at the initiative of the parliamentary majority, while four members will be appointed at the proposal of opposition. Under the law, the chamber members will not be recalled from offices, and vacation of their mandate will be accepted only in case of dismissal, definitive sentencing under Penal Code, expiration of term, from health-related reasons, or if the member turns 65. At present, the legislation says that the parliament can recall the chairman and members of the Chamber of Auditors from offices before term, if they fail their tasks, violate the legislation in effect or commit abusive actions, and if most of elected lawmakers vote for such a decision. Thus, lawmakers decided to limit the own right to revocation in case of the Chamber of Auditors;
detailing of the mechanism for further controls, at the scene and in its offices, and detailing of the mode of issuing of decisions and other documents of the Chamber of Auditors.

Law on modification and completion of the Election Code

The law on modification and completion of the Election Code is part of the most important drafts mentioned above and adopted by the Parliament. The draft was worked out by a task force created especially to collect proposals of all parliamentary factions regarding the improvement of the election system and process, as well as initiatives of nongovernmental organisations specialised in this area. The new regulations may be grouped as it follows:

Explanation of some definitions and notions: appointment of candidates, conduct code (between the Central Election Commission (CEC), mass media and electoral competitors); domicile and residence;
Limitation of participation of independent candidates in parliamentary elections. This law suppressed the possibility of independent candidates to participate in parliamentary elections, maintaining only their right to attend the local elections. The motivation of such an amendment was that no independent candidate was elected as lawmaker since 1994. However, the exaggerate electoral threshold of 3–4percent for independent candidates was not taken into consideration;
Modification of statute of the Central Election Commission. CEC will be made up by nine members: the president of Moldova and the cabinet of ministers will appoint by one member, and the Parliament will name another seven, including five will be named by opposition parties, in line with their number of mandates. The CEC members will be irremovable, but the Parliament will hold the right to sack the CEC members. The Supreme Court of Justice alone has held this right until now, and the transfer of this right to the politics sector can be hardly described as “improvement and democratisation of electoral legislation,” and this is rather a step backwards to insurance of political control on an independent structure. More than that, a norm allowing the Parliament to sack the CEC members if they “gravely violate the Constitution of Moldova and the Election Code” was included. The law does not explain the grave violations of Constitution and Election Code, these being the competences of the Constitutional Court and other courts, as a rule. The post of CEC chairman was assimilated to the office of minister, while the posts of CEC deputy chairman and secretary to the office of deputy minister. Also, the term of mandate of CEC members was reduced from 6 down to 5 years. Under the law, the CEC members will be appointed within three months, so that the mandate of acting CEC members that the Parliament named two years ago may be limited this way;
Change of modality of appointment of members of constituency election bodies and polling stations. Thus, judges will propose two members of constituency councils, local councils of the respective level will name two members, while parties and social-political organisations represented in the Parliament when these electoral bodies will be created will proportionally name the other members entitled to speak and vote. This norm did not provoke debates within parliamentary parties, while the opinion of extra-parliamentary parties was not even consulted, but many experts fear that conflicts and tense situations may occur in future, as this norm may leave room for abuses and monopolisation of the political process by several ruling parties;
Explanation and issuing of electoral lists. The local public administration authorities will verify the electoral lists every year, updating them at the domicile of electors and delivering the information to the CEC by March 1 of every year. The elector with domicile and residence will be included in the electoral list where he has residence (the problem of how students with temporary residence in the settlement where they study will cast their votes will be solved this way);
Status of registered candidates. They will receive the necessary medium salary from CEC in case of relief from office. Also, the registered candidates will not be investigated under the Penal Code, arrested, held or receive administrative sanctions without a beforehand agreement of the electoral body which registered them, except for flagrant offences, throughout the electoral period. The Constitutional Court has considered the last clause within interpretation of a similar article from the Election Code, which was excluded later;
Broadcasting of electoral programmes. All analytical, news, entertainment, or other programmes envisaging the electoral subjects will be broadcasted under generic “Elections” by respecting the CEC concept and regulation. If the image of an electoral subject is harmed in other programmes than broadcasted under this generic, he will hold the right to reply under the same conditions. Also, the public audiovisual institutions have been obliged to organise public debates for all electoral contestants under fair conditions. The Election Code was completed with a norm, at the initiative of NGOs participating in elaboration of this draft, which obliges the mass media to broadcast civic and electoral education advertisement at the request of CEC, to hold media campaigns to inform electors over procedure of voting and other particularities of voting;
Issuing of ballot paper and voting. Every ballot paper will have a detachable coupon containing several elements: — number of ballot paper, type and date of elections; name and first name of elector; series and number of his identity card, place for control stamp, name and first name of person in charge with issuing the ballot paper. The elector will be able to introduce his ballot paper in box only after the electoral body member assures over identity of the holder, and he will keep all the coupons of ballot papers introduced in the box. These innovations besides the “voted” sample applied in annex to the identity card may provoke many problems during voting process, as electors are unused to such details, and there were cases at the latest scrutinies when voters refused to cast their ballots because they did not want the sample to be applied in their annexes;
Empowerment of CEC with the right to sanction electoral competitors. Article 69 of the Election Code was completed with norms which allow the CEC to sanction the electoral competitors for violation of the Election Code through a warning or fine. Also, unlike contraventions and offences, no violations are indicated and thus any breach of the code will be able to bring sanctions. Nor who will apply the sanction is established — the entire commission (through its decision) or only the CEC chairman (as head), like in case of other sanctioning bodies. In the first case, it will be curiously to monitor at the next electoral scrutiny how the new CEC members will apply sanctions, as the opposition representatives will hold the majority and could obstruct vehemently enough the actions of the ruling party representatives;
Modification of electoral threshold. One of the key amendments to the Election Code envisages the fact that a four percent electoral threshold will be in effect for parties and other social-political organisations participating in elections, so that the initial figure established when the 1997 Parliament adopted the Election Code was reintroduced. The electoral threshold for electoral blocs regardless of the number of subjects which created it was unified and established at the level of 8 percent. The electoral threshold for blocs made up by two parties is 9 percent and for blocs of minimum three parties is 12 percent at present. Thus, the idea of a successive threshold introduced in the Election Code in 2000 at the initiative of PPCD was maintained on one hand. On the other hand, a recommendation of the Venice Commission regarding the introduction of a 3–5 percent threshold for a party was fulfilled. It is worth to mention that the norm on electoral threshold was discussed the most and it was modified sometimes in dependence of the political juncture, on basis of interests of the parliamentary majority. It can be said that the amendment this time is also profitable for the majority faction, whose rating was shaken at the recent electoral scrutiny through creation of a joint bloc of centre-right parties. It was observed when the president was elected that small parties are more ready for negotiations and situations like what happened on April 4, 2005 could repeat in future.

Conclusions

Although they are very necessary, these drafts have been worked out and adopted under an emergency regime, without deep analyses and without taking into account the existing objective realities. No international expertise was undertaken on them, while the process of internal coordination with civil society did not have a very transparent nature.

Without reducing the cogent value of certain norms, many experts note that the findings of a primary analysis of these drafts show that they are very far from the initial meaning of appeals and ideas which served as ground to start them.

However, everybody should be content from political point of view: a) the “constructive opposition” has got possibilities to promote its staff and enjoys the occasion to temperate the criticism of former supporters who neglect it after the first had reached a “national consensus” with the ruling party; b) the government maintained possibilities for a long time to influence different structures; the envisaged structures kept or even deepened their independence.

We will see if these amendments will have a true positive impact on citizens, social groups, society in general, and (why not?) on “active opposition” which boycotted the reelection of President Voronin, but votes some modifications within the “national consensus”, if all these changes will contribute to what we call “adjustment of national legislation to principles of international legislation in this area.”

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