on the organization of the debate ”Constitutional Court’s judgment: what happened and what will happen in Moldova?”. Public debates series held by the news agency IPN in its conference room with the support of the German Foundation “Hanns Seidel”
Held on 16 April 2021, Debate No.183 brought together: Nicolae Osmochescu, ex-judge of the Constitutional Court; Vlad Țurcanu, communication expert; Ion Duminica, doctor of political sciences, of the Cultural Heritage Institute and Igor Boțan, the standing expert of IPN’s project.
According to Igor Boțan, the standing expert of IPN’s project, the Constitutional Court (CC), is the only constitutional jurisdiction institution in Moldova. The CC is an independent institution that obeys only the Constitution. The Court’s role is to ensure the supremacy of the text of the Constitution and the implementation of the principle of separation of powers in the state and to guarantee the responsibility of the state to the citizens and vice versa. The CC also reacts to the notifications of the responsible institutions so as ensure control over the constitutionality of laws, regulations, Parliament decisions, decrees, etc. Also, the Court interprets the Constitution, pronounces on proposals to amend the Constitution, confirms the results of parliamentary and presidential elections and referendums and ascertains the circumstances that justify the dissolution of Parliament, the dismissal of the President of the Republic of Moldova, the interim presidency, etc.
The CC passes judgments, decisions and gives opinions following written applications submitted by agents with the right to go to the High Court over the constitutionality of a law or a particular action.
In another development, Igor Boțan said the dispute between the two institutions, Parliament and the presidential administration, is a political one and refers to the dissolution of Parliament. “This dissolution of Parliament has been mentioned by ex-President Igor Dodon for four years. He was the one who on the last day of his tenure welcomed the Government’s resignation aimed at triggering snap parliamentary elections and then changed his view on the method of holding the elections,” stated the expert.
According to Nicolae Osmochescu, ex-judge of the Constitutional Court, under the Constitution and the regular documents, the CC is the only guarantor of the supremacy of the Constitution that ensures the principle of separation of powers in the state and guarantees the responsibility of the state to the citizens and of the citizens to the state. When speaking about the documents of the CC, it should be noted that any document of the CC is irrevocable, definitive and cannot be disputed. Any decision of the CC is taken by a majority of votes. The majority of votes in a composition of six judges is at least four votes. Now there are only five judges and a post is vacant. The opinion on the existence of the circumstances that justify the dissolution of Parliament was adopted yesterday by a majority of votes.
“As a result of that vote of the CC, there was a separate opinion and a dissident opinion. The dissident opinion is a norm or a law sub-institution that is practically new in the jurisprudence in Moldova and in the Constitutional Court’s case law. The separate opinion and the dissident one are yet very close to each other, but are not the same by essence and form. Under the law on the Constitutional Court, the judge of the Constitutional Court cannot shirk from voting and should vote either for or against. The judge cannot abstain, but has the right to a separate opinion. The dissident opinion is something new. It is a form of avoiding pronouncing for or against the examined document,” stated the former CC judge.
Vlad Țurcanu, communication expert, noted the dispute between the presidential administration and Parliament is political in character and primarily legal aspects are examined at the Constitutional Court. It would have been strange if the CC had taken another decision as the Constitution clearly provides that if a Government is not voted in as a result of two attempts by the MPs, the President can dissolve Parliament. “The Socialists said the President is not obliged and the representatives of the presidential administration, including Maia Sandu, insisted on her discretionary right to dissolve Parliament after the two requests to invest the executive failed,” stated Vlad Țurcanu, noting it is very hard to find the middle path here when the stake is very high and the losing side will try to appear just before the public by different methods, many of which do not match the political status of these forces.
“Beyond the concrete solution provided by the Constitutional Court, this intervened to end a political situation that lasted for over five years in Moldova. At the end of 2015, the PDM disrupted the parliamentary and political life in the Republic of Moldova by attracting MPs of the PLDM to the PDM and also Communists earlier. This way, before the mandate of that Parliament and later, there was a component of Parliament that gave the impression that it does not exactly represent the people’s will. That’s why it was important to return to normality for Parliament to become the expression of the citizens’ vote,” stated Vlad Țurcanu.
According to Ion Duminica, doctor of political sciences, of the Cultural Heritage Institute, the conflict between the presidential administration and Parliament is political in character and has repercussions for all the political spheres. “In this political conflict, the presidential administration says that the majority formed in Parliament is toxic and defends the corrupt system, while the essential mission of the presidential administration is to root out the corruption existing in society. The parliamentary majority’s argument is that they struggle against the pandemic and the whole society and the players should contribute to overcoming this pandemic and a functional Government is thus needed,” he stated. The Constitutional Court’s judgment of April 15 will not stop this political dispute. The political struggle should be stopped not by the CC, which cannot do it, but by a dialogue between the presidential administration and Parliament. Time has come to reform the constitutional system so as to define the duties of the Parliament, the presidential administration, including how the parliamentary majority is formed, etc.
Ion Duminica noted that on the one hand, the two attempts to invest the Government were mimicked. On the other hand, the negotiations between the presidential administration and the parliamentary groups were mimicked. To stop this conflict, the legal provisions should be reviewed. “For Moldova, the current constitutional provisions are not enough, especially because there are general notions like “reasonable timeframe”. This uncertainty and the simulation fuel the political crisis,” he stated.
The Agency published 5 news stories on the debate (see the English version of www.ipn.md): on 16.04.21, „Constitutional Court’s judgment: what happened and what will happen in Moldova? IPN debate” - https://www.ipn.md/en/constitutional-courts-judgment-what-happened-and-what-will-happen-8004_1081059.html; „Ion Duminica: Conflict between presidential administration and Parliament is political” - https://www.ipn.md/en/ion-duminica-conflict-between-presidential-administration-and-parliament-is-political-8004_1081060.html; „Vlad Țurcanu: No matter how perfect legislation is, there will always be reasons for challenging particular decisions” - https://www.ipn.md/en/vlad-turcanu-no-matter-how-perfect-legislation-is-there-will-8004_1081061.html; „Nicolae Osmochescu: Regardless of criticism leveled at CC, its decision should be strictly obeyed” - https://www.ipn.md/en/nicolae-osmochescu-regardless-of-criticism-leveled-at-cc-its-decision-8004_1081064.html; „Igor Boțan: Snap elections will be probably held after state of emergency” - https://www.ipn.md/en/igor-botan-snap-elections-will-be-probably-held-after-state-8004_1081067.html.
Valeriu Vasilica, director of IPN