logo

About constitutional aberrations. Op-Ed by Victor Pelin


https://ipn.md/public/index.php/en/about-constitutional-aberrations-op-ed-by-victor-pelin-7978_1081286.html

“The current crisis forms part of the same series and is based on similar accusations of political affiliation of some of the CC judges. But the propagandists of the PSRM, who stir up the conflict, lack inspiration. Amid the PSRM’s accusations that the CC president Domnica Manoli usurped the power in favor of President Maia Sandu, the propagandists disseminate postings contrary to the PSRM’s thesis, about the opposition put up by Maia Sandu’s company to the appointment of Domnica Manoli as a CC judge…”
---


Diplopia of ex-president of Constitutional Court (CC)

The political crisis triggered by the resignation of the Chicu Government is accompanied by a propagandistic competition of the political groups. The Constitutional Court’s decision of April 15, 2021, by which the circumstances that justify the dissolution of Parliament were ascertained, updated the propagandistic competition. Volens-nolens, ex-CC judges became involved in this competition. In debates, some of them stated pertinent opinions, while others proved their affiliation to one or several political groups. In this connection, the opinions of some of the former CC judges, whose signatures confirm CC decisions, shaping the Court’s sinusoidal case law, are relevant.

This way, the criticism leveled by the ex-CC president Dumitru Pulbere at the Court’s decision on the dissolution of Parliament says that: “This decision was not based on the requirements of the Constitution of the Republic of Moldova and didn’t take into account the established practice of the CC and a series of documents of the Venice Commission. The CC abused its authority by adopting such a decision”. Evidently, this assertion contains sequences of the own activity of the judge, who in 2001-2013 served as a judge and as the president of the CC, who signed a series of very controversial decisions of the Court. A relevant example is the CC’s decision No.3 of 06.07.2010 on the initiative to review Article 78 of the Constitution of the Republic of Moldova by the constitutional referendum, concerning the return to the direct election of the President by the citizens. This way, the decision signed by the ex-president of the CC Dumitru Pulbere said that: “The bill to amend Articled 78 of the Constitution by a constitutional referendum does not exceed the limits for reviewing the Constitution imposed by the constitutional provisions of Article 142”. In fact, it evidently ran counter to the CC’s case law that was developed in Decision No. 57 of November 3, 1999): “The referendum is always subsequent to the adoption by Parliament of the bill or revision proposal, based on the provisions of Article 142, paragraph (1) of the Constitution, and has the significance of a suspensive and mandatory condition in relation to the Parliament decision”. Namely this argument was invoked by the MPs of the Party of Communists of the Republic of Moldova (PCRM), who filed an application to the CC. However, despite the established case law, the CC decision signed by Dumitru Pulbere clearly provided that: ”The application of a group of MPs to interpret Articles 141, 142 and 143 of the Constitution of the Republic of Moldova is not accepted for examination”.

The truth comes out anyway. Four years later, the decision signed by ex-CC president Dumitru Pulbere was annulled by the CC, which, in its opinion of September 22, 2014, refused to allow the adventure to amend Articled 78 of the Constitution by referendum to repeat, reiterating that: “The Constitution of the Republic of Moldova contains clear provisions only concerning the revision of the Constitution by Parliament. Another procedure than the adoption through Parliament is not specified”. Surely, why should the unsuccessful adventures be repeated as it is known that the referendum of September 5, 2010, on which tens of millions of lei was spent, was invalidated by the voters who didn’t take part in a proportion of over 1/3, as the electoral legislation requires.

The whole story concerning the involvement of the ex-CC president Dumitru Pulbere is a sample of deliberate violation of the CC’s case law, followed by the wasting of public funds. That’s why the former CC president should refrain from leveling criticism at the current CC judges, but should primarily avoid invoking the application of the CC time-honored practices that he easily ignored when it was necessary. Or it seems that Dumitru Pulbere suffers from diplopia – from the post of CC president he saw the application of its case law in one way, while from the current position of consultant to the leader of the PSRM he sees things in an entirely different way. 

Large-scale manipulation of legal instruments

The opinion of another ex-president of the Constitutional Court, Alexandru Tănase, is also very interesting. In an interview for RFE/RL’s Moldovan Service, he said that: ”We live in a banana republic, where there are actually no laws, no principles by which the politicians would abide. Things are subordinate to the momentary political interests and are manipulated in an inadmissible manner by all the sides”. The question that appears immediately is: why aren’t there any rules in fact? The answer is that he himself contributed to the avoidance of the rules and principles that were earlier stipulated in the CC decisions that he signed.

For example, in Decision No. 30 of 01.10.2013, the Constitutional Court led by Alexandru Tănase stipulated the following: “According to the legal doctrine, the method of electing the President determines the form of government ...  In a presidential republic, the President is elected by the citizens and, from legal viewpoint, is on the same position as Parliament... In a parliamentary republic, the President is elected by Parliament and, owing to this fact, the legal position of the President is inferior and subordinate to Parliament”. Three years later, by Decision No. 7 of 04.03.2016, the Constitutional Court ascertained that the constitutional reform of 2000 was prejudiced by the non-observance of the procedures for amending the supreme law, declaring unconstitutional paragraphs (1), (3), (4) and (5) of Articled 78 of the Constitution, referring to the election of the President by Parliament. In such circumstances, the CC decided to restore the method of direct election of the President, which was used before the reform. In accordance with the legal doctrine, when the method of electing the President was changed, the return to the form of government was to be stipulated. But the CC avoided restoring the powers enjoyed by the President before the reform of 2000. So, Decision No. 2 of May 4, 2010 concerning the initiative to review Articled 78 of the Constitution provided that: “the revision of the method of electing the President should ensure the unity of the constitutional law and a balance between the concurrent norms and those concerning the presidential administration and its relations with the Parliament and the Government”.

Consequently, the return to the direct election of the President in 2016, by keeping the limited powers of this, meant the establishment in the Republic of Moldova of a hybrid form of government that was never adopted by the constituent lawmakers and by the citizens, by referendum. This fact runs counter to the CC Decision No.57 of 03.11.1999, which provides that:

  • the stability of the Constitution is one of the preliminary conditions for ensuring the continuity of the state and the respect for the constitutional order and legislation and for ensuring the achievement of the objectives stipulated in the Constitution, on which the Constituent itself is based;
  • the Constitution of the Republic of Moldova is relatively rigid as it allows for revision, but only for a pre-established technical system concerning the revision initiative (art.141), revision limits (art.142) and revision procedure (art.143)”.

In fact, the hybrid form of government was introduced without the participation of the constituent lawmakers or voters. All the weird things mentioned above happened in the period during which the CC was headed by Alexandru Tănase, who in the mentioned interview invoked the large-scale manipulation of legal instruments in the process of adopting the CC decision of April 15, 2021, concerning the dissolution of Parliament. This way, we see that the ex-president of the CC Alexandru Tănase is right – the avoidance of the established rules and of the CC’s case law decisively contributes to Moldova’s transformation into a banana republic.  

Conclusions

The governmental and political crisis experienced by the Republic of Moldova is the result of the CC decision of March 4, 2016, by which the direct election of the President by the people was restored. That decision ignored the CC case law, creating chaos in interpretation. Despite the legal doctrine, the hybrid form of government, when the President is elected as in a presidential republic, but has powers typical of parliamentary republics, has never been adopted by the constituent lawmakers or the citizens of the Republic of Moldova. This aberration will probably continue to generate conflicts between the presidential administration and Parliament.

The main political opponents, ex-President Igor Dodon and President Maia Sandu, in 2016 didn’t oppose the weird restoration of the direct election of the President. On the contrary, the two supported the aberrant decision of the CC and now are at loggerheads. That’s why, to prevent the perpetuation of this crisis, the CC should review its case law so as to make it compliant with the constituent lawmakers’ will before the reform of 2000 or after it or to start a constitutional reform as to return things to normality.

The appointment of the CC members according to political criteria does not stop creating problems, undermining the institution’s prestige. The examples are relevant. The ex-CC president Dumitru Pulbere was named CC judge directly from the seat of MP, when he represented the Democratic Party of Moldova (PDM). We saw how principled he was when the Alliance for European Integration, of which the PDM formed part, wanted to call a referendum contrary to the CC’s case law. For his part, ex-CC president Alexandru Tănase was named CC judge after he served as an adviser to the PDM and then as minister of justice on behalf of the Liberal Democratic Party of Moldova (PLDM). In his case too, we saw that he is able to act contrary to the legal doctrine, the will of the constituent lawmakers and citizens. Another example is that of the ex-CC president Vladimir Țurcan, who was appointed to this post from among the Socialist MPs. He lost the post as a result of a public scandal related to the incapacity of ex-President Igor Dodon to keep silent. Boasting that he can consult his former party mate whenever he wants, Dodon acted to the detriment of Vladimir Țurcan, who was dismissed from the post of CC president by the Court’s judges.

The current crisis forms part of the same series and is based on similar accusations of political affiliation of some of the CC judges. But the propagandists of the PSRM, who stir up the conflict, lack inspiration. Amid the PSRM’s accusations that the CC president Domnica Manoli usurped the power in favor of President Maia Sandu, the propagandists disseminate postings contrary to the PSRM’s thesis, about the opposition put up by Maia Sandu’s company to the appointment of Domnica Manoli as a CC judge.