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Constitutional Court Decision: Yes for opportunities, No for solutions
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PCRM caught in its own trap
On February 8, 2011 the Constitutional Court (CC) has decided to discontinue consideration of notification of the Party of Communists of the Republic of Moldova (PCRM) on interpretation of Article 90 of the Constitution concerning the deadlines for setting the date for presidential elections. PCRM’ declared interest was that provisions of Article 90 para. (4), according to which: “Within two months from the date on which the vacancy of the office of President of the Republic of Moldova occurred, the elections for a new President shall be organized in accordance with the law” — be interpreted by CC so that within 2 months of taking the interim office of the head by the newly-elected Speaker of Parliament, Marian Lupu, i.e. by the end of February 2011, the presidential elections should be held. The goal of PCRM was to benefit from the temporary deficit in order to undermine the arrangements within the Alliance for European Integration (AEI) vis-a-vis the presidential elections by threats to resort to boycotting the event if the PCRM conditions won’t be accepted and therefore to provoke early parliamentary elections.
To justify the possible use of the boycott and disclaimer to trigger early parliamentary elections, PCRM propaganda has substituted the issue of resorting to boycott with statements of PCRM’ impossibility to vote for the AEI candidate — Marian Lupu. The feedback regarding the PCRM’ right to propose its own candidate, who would compete with the AEI candidate, was dropped by invoking the need to find a compromise candidate for the position of the head of state, politically not affiliated, to be voted jointly by PCRM and AEI. Since there are no agreed criteria for the identification of such candidate, consultations would have to take place in this respect between partners who do not trust each other. It was actually a mission impossible for about three weeks time that would have remained, according to the PCRM plans, since the CC decision date (February 8, 2011), till the actual conduct of elections — the end of February.
Consequently, after the CC decision of February 8, PCRM got two temporary defeats:
- it has shown mistrust in its own MPs determining them to sign a document binding them to observe the decisions of PCRM leadership. It is clear that imposing to sign such an act is part of preparation for eventual resort to the boycott, because it is controllable, while the decision to vote or not for one candidate or another is uncontrollable in case of secret ballot provided by the Constitution. It is noted that the imposition to sign the “covenant” against the spirit and norms of Moldovan Constitution, which expressly provides that: “In exercising their mandate MPs are serving the people” and by the “covenant” of the PCRM faction members each of them is committed: “To forget not that breaching this commitment is the most serious moral crime against the interests of the Party of Communists, against thousands of supporters, who entrusted me with the right to act on their behalf”. Logically, it results that for PCRM MPs to serve the party interests is primary to stay in the “service of people”. Even more curious is that this conduct of PCRM is based on Article 20 of the party statute, which states that PCRM members, holders of public offices, must implement the party’ decisions. That is, if PCRM, being in opposition, decides to boycott the governance’ action, then its members, being in public positions, don’t have to be compliant with the governmental programme and law, but with the party decisions. This already had negative consequences: in October 2009 the AIE has decided to bring the positions of deputy ministers in the category of political ones and to dismiss from office a number of officials on the ground that they may resort to boycott;
- it lost the opportunity to have a minimal legitimacy of resorting to propaganda actions by invoking “usurpation of power” by AEI. If PCRM would not notify the Constitutional Court, then it could at least speculate that this thesis used by it during 2010, when it demanded immediate announcement of early parliamentary elections. Finally, it appeared that not only legally, but also practically it was not about “usurpation of power”, because in early elections the PCRM gained less parliamentary seats than AEI.
Questions for PCRM
Broadly, CC decision of 8 February 2011 provides AEI with opportunities to have legitimately enough time to identify a definite solution for electing the head of state and for overcoming the institutional crisis. In this respect, the CC mentioned that it’s up to the Parliament to find the proper solution by amending the legislation, the Constitution of the Republic of Moldova, through negotiations etc. However, it remains unclear until when the presidential elections might be postponed. The only landmark in this respect is the Article 85 para. (3) of the Constitution, which states that “During one year, the Parliament can be dissolved only once”. Since the early parliamentary elections are constantly and deliberately provoked by boycotting presidential elections, it is logical to assume that under the boycotting threat the deadline for presidential elections may be at least one year since previous dissolution, i.e. September 28, 2011. This reasoning is speculative, since there are no binding rules, and these have to be developed by Parliament.
CC decision was toughly criticized by PCRM, invoking all sorts of arguments and even insinuations. In this context, the PCRM leaders may be recommended to make a very simple exercise to get convinced that CC decision was a correct decision. They must answer the question — when the presidential elections should be held if the PCRM leader Vladimir Voronin had not resigned on 11 September 2009? The question is not trivial, since ex-President Vladimir Voronin could remain in presidential office until today. In addition, in order to make order in its own judgments, PCRM should answer to a series of questions:
- why PCRM has violated the deadline of ordinary presidential election date, which would have to be held no earlier than 45 days before the presidential term of office of Vladimir Voronin expired, on 7 April 2009?
- why the Parliament of XVI convocation, where the PCRM held the majority, has not set the date for ordinary parliamentary elections so that the new composition of Parliament would succeed to elect the head of state without violating the deadlines set by law?
- why the PCRM majority faction didn’t notify the CC to establish the vacancy of presidential office after 7th of April 2009, when Voronin’s mandate expired? For under the Article 90 para. (I) of the Constitution: “Vacancy of the office of President of the Republic of Moldova shall occur in case of the expiration of the term of office, resignation, dismissal, definite inability to exercise the competences or death”;
- after the election of Vladimir Voronin as Speaker of Parliament on 12th of May 2009, we must understand that he exercised the interim office under Article 80 para. (2), which provides that “Moldovan President exercises his term of office until the oath taken by the newly-elected President” or by virtue of holding office of the Speaker of Parliament, under Article 91 of the Constitution? If after April 7, 2009 Vladimir Voronin performed the interim office of the head of state under Article 80 para. (2) of the Constitution, then why for one month, after April 22, 2009, when mandates of the members of Parliament of XVII convocation have been validated, he has not resigned from the MP office and was not considered as ex officio suspended from this position as required by law? Article 5 para. (i) of the Law on MP status provides for that obligation: “The MP who is in a case of incompatibility laid down in article 3 shall resign, within 30 days from the date of validation of the mandate, from the position incompatible with the MP mandate”. Article 3 of that law further provides that “MP’s mandate is incompatible with the office of Moldovan President”, and Article 5 para. (2) of the Law provides that: “If the MP is in one of the incompatibility cases and did not file, within the deadline referred to in para. (1), the request on resignation from the office incompatible with the MP office, after the expiration of this deadline is suspended ex officio from the incompatible position”;
- however, why did Vladimir Voronin present his resignation on September 11, 2009? Why he did not carry the interim office in accordance with Article 80 par. (2) of the Constitution? The answer is simple — after the early elections of 29 July 2009 and validation of MPs of the XVII convocation on 14 August 2009, the day of September 11, 2009 was the last working day of Parliament, included in the 30 days term to address the incompatibilities provided by the Law on MP status. This time Vladimir Voronin has complied with the provisions of this law, perhaps, because the PCRM lost the parliamentary elections and by remaining in the office it was likely to get into conflict with AIE majority, and to be “suspended ex officio from the presidential office”, the term of office of which expired long time ago;
- taking into account the circumstances elucidated above, may the Constitution of the Republic of Moldova provide remedies against zigzags of Moldovan politicians, who interpret the constitutional and legal norms as they wish? Perhaps not, and if so, what is then not right in the CC decision to recommend Parliament to find necessary solutions to avoid in the future the generation of political instability due to arbitrary interpretation of legal norms?
Constitutional Court’s decision is the only correct one
Now let’s get back to the CC decision per se on setting the date for presidential elections. Firstly, considering that it’s about presidential elections when this position is vacant, the Article 90 para. (4) of the Constitution states that: “Within two months from the date on which the vacancy of the office of Moldovan President occurred, the elections for a new President shall be organized in accordance with the law”. In fact, according to Article 90 para. (I) of the Constitution, the vacancy occurred on April 7, 2009. Secondly, Vladimir Voronin, has exercised this function before and after presidential elections boycotted by liberals and democrats held in May and June 2009, until he was likely to get into incompatibility of the positions held, after September 14, 2009, which actually led him to present his resignation from the position of the head of state, since he was not sure he could succeed to boycott the presidential elections. If Vladimir Voronin had resigned from the MP office in favor of holding the position of the head of state, then he could being accused of usurpation of power, be suspended from his presidential office and the interim office would be taken over by the speaker of Parliament. It is this maneuver that made the Parliament to take note of the resignation of the head of state, and the CC to establish on September 17, 2009 the circumstances which justify the interim position of Moldovan President, which, according to Article 91 of the Constitution, shall be ensured, in order, by the Speaker of Parliament or the Prime Minister.
Following those mentioned above, things that highlighted PCRM’ behavior based on its own interests, this party addresses the CC and requests to interpret the norms of the Constitution on setting the presidential election date, again based on its own interests. In fact, it’s the right of PCRM to do so, but the interpretation of constitutional norm can not be based on a party’ interests, as well as it cannot have as reference point the events created by it in order to achieve its own interests. Interpretation of the Constitution must proceed from reference points expressly established by the text of the supreme law, without falling into dependence on the consequences of maneuvers made by politicians pursuing their own interests. For example, if Vladimir Voronin, in order to avoid incompatibilities described above, would have resigned in September 2009 from MP position, choosing the position of the head of state until the sworn by newly elected President, then since what date PCRM would calculate those famous two months to organize presidential elections? Only after the boycott of presidential elections in November-December 2009 the interim office of the head of state would not have been exercised by Mihai Ghimpu, then by Vlad Filat and then by Marian Lupu. This example shows unquestionably the relativism of PCRM’ judgments, as well as the unfounded and insinuated allegations against the CC for not having taken a decision that would fit PCRM.