Serious deviations have been lately witnessed at practically one of the most important pillars of the rule of law and democracy in the Republic of Moldova – the Constitutional Court (CC). Respectively, the degradation of the situation related to the CC can mean the degradation of the rule of law and democracy in the Republic of Moldova, with all the possible consequences. The motives, players, tendencies of such a situation and the eventual solutions to this state of affairs were discussed in a public debate entitled “Constitutional Court swaying in the political wind: norm or deviation?”, which was organized by IPN News Agency. The debate involved former judges of the CC Victor Pușcaș and Nicolae Osmochescu. The representatives of the Party of Socialists, who are in power and who were directly involved in this worrisome controversy, didn’t accept to take part in the debate on a political platform.
IPN project’s standing expert Igor Boțan said the current activity of the CC, the judgments passed by this and the case law developed during 20 years are very important for ensuring the unity of the constitutional content in the Republic of Moldova. This institution has become even more important, especially in situations of crisis. “Want it or not, but our country and practically all the countries of the world found themselves in a difficult situation. We are confronted by this very dangerous pandemic. At the same time, we will face an economic crisis that should also be overcome and dealt with. That’s why the subjects that can file applications to the Constitutional Court became more active and the High Court is put in the situation to respond to these requisitions,” stated Igor Boțan.
According to the expert, it has always been like this, not only in very difficult situations like the current one. The electoral sector can be an example, namely how often they went to the Court in 2009-2012, when Parliament could not elect the Head of State and the country had had an acting President for almost three years. This example is relevant to see the importance of the CC in moments of crisis.
Igor Boțan reminded of the recent example when the CC during a week was asked by MPs to pronounce for six times. This underlines that it is normal for the Court to become possibly the most important institution in the country in crisis situations. In such conditions, it was expected that the CC will be subject to particular pressure. “My fear is that this pressure will be excessive and the judges of the Court will be unable to fulfill their duty, as they know best,” he stated.
Former CC judge Nicolae Osmochescu, university professor, said that when it goes to the crisis around the CC, we should speak about an attempt to influence politically the CC and its judges. “It is an influence attempt coming from different political parties. So, it is a process of direct political interference on the part of the political parties, both parliamentary and extraparliamentary, in the work of the Constitutional Court. It is not an internal crisis of the Constitutional Court,” stated the professor.
“One: We do not have the right to and cannot speak about a crisis inside the Constitutional Court for the simple reason that the current composition of the Constitutional Court was replaced recently. Two – we do not have sufficient arguments and sufficient constitutional jurisdiction practice in this makeup. This is my opinion and position on what is going on around the activity of the Constitutional Court and particular work of some of the CC judges.”
Ex-CC judge Victor Pușcaș, university professor, said the roots go much deeper and, to understand one event or another, this should be regarded in depth and comprehensively. In 1990, our country left that totalitarian, Soviet regime dominated by very strict rules, where the courts of law were recognized not as a branch of power, but as a continuation of the political power. “The courts of law were like the Cinderella of Soviet society. The changes started in the 1990s as things were to be ordered so as they should be in a state with the rule of law,” noted the professor.
According to him, the Soviet state didn’t recognize the constitutional law as a discipline and didn’t recognize the constitutional control of laws, etc. “The constitutionality control is a new instrument even in the world. It was instituted in Europe in 1919-1920. In the United States of America, it appeared earlier, in 1803, while in the Soviet Union in 1988. Later, after the declaring of Independence and after the adoption of the Constitution of the Republic of Moldova, after studying all the doctrines of the world, it was reached the conclusion that the Constitutional Court should be created as an independent institution. Its place is outside the branches of power,” said Victor Pușcaș.
He also said that it was “quiet” initially and the political power didn’t interfere much in the activity of the Constitutional Court, but political tendencies to control the CC started to appear. “This became visible after 2001, when the Party of Communists came to power with 71 seats of MP. But in that period too, there was no direct influence and they used mainly the amendment of the legislation so that this suited the power. This actually began in 2001,” stated the professor. According to him, in particular circumstances it is enough for three judges who sympathize with the ruling party to serve on the Court and the danger of adopting unconstitutional laws will thus exist. The overcoming of the current crisis situation depends on the behavior of the CC judges, who can prevent similar crises.
The debate “Constitutional Court swaying in the political wind: norm or deviation?” was the 131st installment of the series of debates “Developing political culture through public debates” that are supported by the Hanns Seidel Foundation.
