The representatives of the Democratic Party (PDM) criticized the initiative to hold a referendum to annul the law by which the mixed-member electoral system was introduced. Two top jurists of the party, Sergiu Sarbu and Vitalie Gamurari, with the latter being also the party’s spokesman, pleaded the cause of the Democrats. They both criticized the referendum from political viewpoint and argued that from legal viewpoint this is also not right. The authors of a new Sic! article analyzed their arguments, IPN reports.
The first argument is that a referendum would be unconstitutional. Sergiu Sarbu said a constitutional referendum can take place only when this is stipulated clearly in the Constitution. Our Constitution provides that only the elements related to independence, sovereignty and neutrality should be supported also by referendum before being adopted by Parliament. Sergiu Sarbu’s statement is not really connected with the referendum proposed by civil society, which is a legislative, not a constitutional one. The goal of the initiative is to obtain the abrogation of a law – more exactly law No. 154 of July 20, 2017 – not to amend the Constitution, and the provisions invoked by the Democratic jurist are thus irrelevant. The Constitution says it clearly that the sovereignty belongs to the people and this can be exercised directly, through a referendum, when it is about the most important problems of society. The way in which the people choose the MPs is definitely an issue of such a kind.
Another argument is that the elections are coming and it is too late already. Vitalie Gamurari criticized the referendum even harsher, calling it “juridical nonsense” and “a false initiative”. According to him, it is too late as only one year remained until the next elections. What the Democrat ignores is that fact that the referendum is aimed at abolishing the new mixed electoral system that hasn’t been yet applied and at restoring the old proportional representation system that was used until now. In this connection, it is important to understand the recommendations of the Venice Commission and to shift somehow emphases between the old and the new systems. The reason for which the Commission does not recommend changing the electoral system often or one year before elections is the fact that “the voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful and that their own votes have little weight in deciding the results of elections.” Such a concern was generated by the new electoral system, which is criticized both by the opposition and by civil society. The Commission in its opinion noted that there was no real broad consensus on the electoral reform. The same reason is now invoked by the initiative group for promoting the referendum.
One more argument is the fact that something else is needed instead. Sergiu Sarbu sees one more problem: “Law No. 154 of 2017, by which the mixed electoral system for the parliamentary elections was introduced, cannot be simply annulled. It is a bill to amend and supplement the Election Code of the Republic of Moldova that already produced effects. As a legislative technique, a new law should be proposed for the previous electoral system to be restored. In fact, a new law is not needed. To convince ourselves of this, it is enough to remember the case when the Constitutional Court decided to restore the direct election of the President. After the Court declared the laws by which the power to choose the President was transferred to Parliament, the CC judges restored the previous provisions concerning the election of the President by direct, secret and freely expressed vote. So, the CC decided to restore the order form of the law and no new Electoral Code was needed. Thus, Sarbu’s argument that the law already forms part of the Election Code and cannot be annulled without adopting another law instead is not valid.
The Democratic MP is also contradicted by Law No. 780 concerning legal acts. Under Article 39(5), the abrogation can be accompanied by the adoption of a new regulation on the issue, but can also be independent from a new regulation when an act or an inappropriate norm is removed. In other words, it is possible to annul a law without adopting something else instead of it, when inappropriate norms are eliminated. The declared goal of the referendum is to abrogate changes made to the Election Code, which the initiators consider “inappropriate”.
In conclusion, the authors of the article say it is logical for the PDM to defend the system that it promoted so assiduously until now and to oppose a referendum. Apart from the political criticism yet, the legal arguments of the Democrats are invalid. If the plebiscite is welcome or too expensive is another question, but the referendum on the annulment of the mixed system is not yet “juridical nonsense”.
Sic! is a fact-checking, promise-tracking and explainer project implemented by IPN with the support of the Soros Foundation-Moldova and the Black Sea Trust.
