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Public Discussion: Suspension of President: legality, institutional blockage, political confrontation
on the organization of the debate “Suspension of President: legality, institutional blockage, political confrontation”. Developing Political Culture through Public Debates”. Public debates series held by the news agency IPN in its conference room with the support of the German Foundation “Hanns Seidel”
The 94th debate held on October 1, 2018 involved: Democratic MP Sergiu Sîrbu; vice president of the PDM; Ioin Ceban, secretay for ideologi of the PSRM; Maxim Lebedinski, prezidetial adviser; Nicoale Eșanu, secretary oh state at the Ministry of Jusitce and Igor Boțan? Tye project”s standing expert.
Why this theme and this format?
This theme was chosen because this is a less known phenomenon in the political theory and practice of the Republic of Moldova, but it necessitates increased effort for being elucidated, also because it has a great potential for destabilizing the rather feeble sociopolitical balance in the country.
This format was chosen because it represents four of the most important players involved in this conflictual phenomenon: three of the most important state institutions on the one hand and two of the most influential parties on the Moldovan political arena, with a position and open interest in it, on the other hand. The representatives of the institutions had the role of helping the public elucidate legal aspects of the debated problem, while the politicians – the political aspects respectively.
Igor Boțan, standing expert of IPN’s project, said last year on September 19, the Government requested the Constitutional Court to interpret norms of the Constitution so as to overcome an institutional blockage. It was about the President’s refusal to adopt a particular decree. The CC urgently and clearly responded to this request and in its judgement noted that under the provisions of the Constitution, the President’s refusal to fulfil his constitutional obligations leads to the temporary impossibility of exercising the duties. “So, the Constitutional Court ruled that the temporary impossibility refers to the President’s refusal or unwillingness to promulgate or adopt particular laws. From my viewpoint, all the problems started from here,” noted Igor Boțan, saying these refer to a number of things.
According to the expert, the situation in the Republic of Moldova is unique as the President was suspended not for a particular period, but for a particular cause and this is something exclusive. Another aspect is the fact that the suspension in the Republic of Moldova was repetitive, the President being suspended for four times not for physical or another impossibility, but for refusal. The third aspect is fact that the CC in its judgement invoked the example of Belgium, where a problem really existed, but this was a conscious one. “In Belgium, there was definitely a problem of religious conscience and a deviation was witnessed in this country – the king was suspended for a particular problem and the Premier signed the decree on the coming into force of a particular law. All these things deserve special attention because, as I said, in the Republic of Moldova we have an absolutely unique situation – the suspension of the Predesign for a particular cause, not for a particular period during which he would not be able to fulfil his duties,” stated Igor Boțan.
MP Sergiu Sîrbu, vice president of the Democratic Party of Moldova, said a serious and defying violation of the Constitution by the President was witnessed and not for the first time. “That’s why resulting from the practice of the Constitutional Court and the historical decision of the autumn of 2017, the last application was filed with the intention of solving that institutional conflict that degenerated into a constitutional blockage caused by the President’s refusal to name members of the Cabinet. You should know that I had not even the slightest pleasure of going and submitting this application to the Constitutional Court as I think that this is a national shame. We reached an exceptional situation when we had to make use of this mechanism for ensuring the constitutional duties that the President deliberately refused to perform are fulfilled,” he stated.
According to the MP, the Court’s decision provides solutions so that we do not reach a full impasse in such situations, but this mechanism should not be used very often. This had to be used or a blockage would have been experienced indeed. The CC not only once said that the President is not responsible for the government program, does not lead the Government and thus cannot a priori have the veto right in this regard. “He can one time refuse to sign for particular reasons, but when the Prime Minister fields the same candidates again, he is obliged to do it. We already have the third precedent when the President refuses to deliberately name the ministers, defiantly violates the Constitution of the Republic of Moldova and we have a situation of blockage. That’s why we had to go to the CC to break the deadlock,” he noted, voicing hope that the most recent suspension will be the last one in the country’s history, but doubted this.
Presidential adviser Maxim Lebedinski said the example of Belgium is the only one in the world history, but what is important is that the king of Belgium consented to his suspension from office and to having that act signed by the Premier instead of him for those religious reasons that ran counter to the interests of the state. The case of Belgium cannot be compared with that of Moldova. “Respectively, the Constitutional Court has absolutely no legal right to base its decision on particular precedents, not speaking about examples from other states. If we refer to the main problem, this case didn’t appear following the President’s refusal to name these two ministers. The problem appeared when Article 98, paragraph 6 was interpreted or even earlier,” stated the adviser.
He also said that in one of its judgements, the Constitutional Court actually took on the powers of Parliament. The Court held that the CC judgements form a whole together with the text of the Constitution and its interpretation decisions are equal to the text of the Constitution and the problem derived from here. “We will find no normative document or a sentence in the Constitution saying the Constitutional Court’s judgments are equal to the text of a constitutional law. There are only two methods of amending the Constitution – through Parliament and through referendum that is to involve the citizens of the Republic of Moldova. Thus, we understand that the Court took on particular powers that do not belong to it and could not belong to it. Later the Court extended the President’s oath that says the President is actually obliged to guarantee the sovereignty and to obey the Constitution and the laws of the Republic of Moldova. But the court, in one of its judgments, said the President is obliged to obey its judgments and any violation of these decisions is a violation of the oath,” noted Maxim Lebedinski, adding the CC every time widened its powers by own judgements.
Nicolae Eșanu, secretary of state at the Ministry of Justice, said he is the representative of the executive power, but formally has no mandate to represent the Government so that at the debate he will state the Ministry’s position. The Premier presented the Government’s position and, according to the executive, the Constitutional Court, in accordance with the Constitution, is empowered to interpret the Constitution and only what the Court says has legal authority in a Constitution interpretation matter. This means that in case of a divergence between Parliament and the Constitutional Court, for example, the CC’s opinion prevails. “Parliament can have another opinion and can intervene as a constituent legislator with amendments to the Constitution if it considers the Constitution should be understood and applied so that as long as the constitutional text is not amended, the authority of judged matter of the Constitutional Court’s judgements is not doubted. Regrettably, I cannot comment in public on the Constitutional Court’s judgements. I agree there are particular problems with some of the Court’s judgments, but I will not go into details. When the Constitutional Court pronounces on a matter, the problem is definitely solved and has authority before all the state institutions – President, Government, Parliament,” he stated.
“As regards the court rulings, we can debate a lot, but there is an axiom – a court decision is implemented, not discussed. Mister Lebedinski tried to suggest that the common law courts work in the limits of the legal framework and do not assume duties, but this is not true,” stated Nicolae Eșanu. He said he was obliged to execute a court decision taken by a judge who abused all his powers and made him issue a lawyer’s license to a person who didn’t take part in one of the stages of the exam. According to him, when the court decisions are neglected, the rule of law principles are undermined. From legal perspective, things are clear: the CC interpreted the Constitution; its decisions are irrevocable and should be executed.
Ion Ceban, secretary for ideology at the Party of Socialists of the Republic of Moldova, replied to the Democratic MP Sergiu Sîrbu who said the suspension of the President made Moldova famous abroad, noting the country actually became known as a result of the banking fraud and owing to the number of people who go abroad, the invalidation of the Chisinau elections and the high level of corruption that is the result of governance and is also related to the legal system. “What makes me regret a lot is the fact that the Constitutional Court unfortunately becomes a party branch as other institutions in the Republic of Moldova do. And this is really serious as when you need, you make a request and the Court obediently grants it. And we saw this repeatedly. But something like this should not happen,” he stated.
The Socialist heavyweight noted the references to the international practices are mistaken as precedents are created and these are very noxious for institutions, for the state in general and should be thus avoided. As to the appointment of the two ministers, Ion Ceban said people and the press said these are suspected of being corrupt. Former Prime Minister Vlad Filat wasn’t allowed to hold that post owing to suspicions of corruption. By analogy, the President has in these regard all the prerogatives to question the integrity of some persons proposed for particular posts. Currently, even if this thing is not liked, the President is the only person, institution, authority that benefits from full legitimacy, being the only person who gained over 50% of the poll and represents not only his voters, but the entire population.
The debate “Suspension of President: legality, institutional blockage, political confrontation” forms part of the series of debates held by IPN News Agency and Radio Moldova as part of the project “Developing political culture by public debates” that is supported by the Hanns Seidel Foundation of Germany.
The Agency published 7 news stories on the debate (see the English version of www.ipn.md): on 01.10.18, „Suspension of President: legality, institutional blockage, political confrontation. IPN debate” - http://ipn.md/en/special/93861; „Igor Boþan: President in Moldova is suspended from office in exclusive way” - http://ipn.md/en/special/93862; „Sergiu Sîrbu: A legal solution as to suspension of President exists, but a political solution is also needed” - http://ipn.md/en/politica/93863; „Ion Ceban: Constitutional Court regrettably becomes a party branch” - http://ipn.md/en/politica/93864; „Maxim Lebedinski: Constitutional Court actually assumed powers of Parliament” - http://ipn.md/en/politica/93865; „Nicolae Eºanu: Constitutional Court’s judgements cannot be questioned” - http://ipn.md/en/politica/93866.
IPN promoted the debate before and after the event, in particular the ensuing news stories, using all the available channels, including social networks. Confirmatory materials of deliverables, as well as a media coverage dossier are attached.
Valeriu Vasilica, director of IPN
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