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Alexandru Tănase: There are essential differences between judgments of the Constitutional Court of Moldova and political attitudes

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“Political attitudes differ from Constitutional Court’s judgments as the former do not need legal reasoning.”  This is the leitmotiv of the interview granted by the President of the Constitutional Court of Moldova, Alexandru Tănase to Valeriu Vasilică , on CCM’s Judgment of 4 March 2016, which is still largely discussed in Moldovan society.

Mr Tănase, on 4th of March CCM adopted a judgment that restores citizens’ right to elect the Head of State. Some welcomed this judgment, others criticised it. Critics say that Court’s judgment has a political valence and that it is only for the Parliament to operate amendments to the Constitution, not the Constitutional Court.

– All the judgments of all the constitutional courts from the world have political valences. As long as a constitutional court may trigger changes being brought to a law or annul it, which in fact is the expression of political will, any decision of it may have political valences.  Constitutional Court’s Judgment of 4 March 2016 is subject to criticism by a small circle of persons criticising all the decisions of the Court, no matter the subject-matter brought before the Court. Those who on 29 December 2015 were accusing the Court of favouring Democratic Party in forming the Government, are now accusing just as fervently the Court of hindering the very same Democratic Party to elect the President of Moldova through the Parliament. Moreover, I sadly notice that many of those who comment on this issue have not even read this judgment of the Court. Let me put in other words: political attitudes and rationale differ from the judgments of the Constitutional Court, as the former ones do not need legal arguments.

And what about the argument that it is only for the Parliament to amend the Constitution?

– No doubt, the Parliament is the one that can amend the Constitution. The Constitutional Court ruled, after 2010, that under certain circumstances, the Constitution may be also amended by way of referendum. The Constitutional Court does not have such competences and I cannot see how it could. At the same time, the Constitutional Court is the sole authority empowered by the Constitution to undertake constitutional review of laws passed by the Parliament, including laws amending the Constitution.

The Constitution cannot be amended without Constitutional Court’s Opinion or when the latter is ignored or exceeded. It is exactly out of this rationale that the framers of the Constitution laid down in Article 141 of the Constitution that constitutional draft laws may be submitted to the Parliament only following the Opinion of the Constitutional Court. Subsequently, the Constitutional Court is the sole authority of constitutional jurisdiction entitled to check whether its opinion is observed and to invalidate laws passed by the Parliament in disregard of these opinions. Even, as a consequence, invalidating a law amending the Constitution leads implicitly to the elimination from the Supreme Law of a text introduced by constitutional fraud, this procedure should by no means be considered an amendment of the Constitution. In essence, it is a quite a simple legal issue, even the impact is quite big.

What is the essence of the amendment introduced by Parliament without Constitutional Court’s Opinion?

– The Constitutional Court delivered an Opinion on the draft law providing for the Head of State to be elected with the majority of the elected MPs (51 votes out of 101). However, the MPs brought substantial changes to this draft law, including another majority – 3/5 of MPs (61 votes out of 101). A first perverse effect of the quote of 3/5 was the people’s will being substituted with the occult will of some circles of interest and political groups. Secretary General of the Council of Europe called this – the “captive state” effect. A second perverse effect was a total distortion of the political process, so that decisions on the appointment of the Head of State were not an election of the leader of the state, but rather a vote out of obligation to avoid losing the benefits of an MP seat in case the Parliament is dissolved. Actually, there had been instituted an election mechanism by constraint. Judging by stenograph of Parliament session of 5 July 2000 there clearly results that the authors of these amendments in Parliament pursued exactly this goal – to create the possibility of an indefinite number of Parliament dissolutions, till there was achieved the election of a convenient person.

What were the effects of that amendment?

– The most troubling effect was that of a chronical institutional instability and of an infinite dissolution of Parliament due to failure to elect the President. The system created by this reform imploded the whole political spectre of 2005. In order to avoid Parliament dissolution, political parties with totally different doctrines were, in fact, forced to vote for the then President, distorting  the vote received from the electorate. The cost of that amendment was the destruction and vanishing of a number of political actors, including some historical parties. Since 2009, we had a period of nearly 3 years of ad interim, which amounts to almost a full mandate of a President. Under those conditions, could one speak of checks and balances, when legislative and executive powers were overlapping throughout a full mandate almost? It is just a tiny part of multiple perverse effects generated by the constitutional fraud of 2000. Perpetuation of that system could have led to chronical instability or other obscure solutions, totally lacking transparency, thus depriving a President eventually elected by Parliament from any legitimacy in the eyes of citizens.

Another question raised by our political analysts: why is it exactly now that this judgment of the Constitutional Court of Moldova has been delivered?

– The Constitutional Court of Moldova does not deliver judgments ex-officio, but only upon request. This complaint was lodged by the largest parliamentary group of the opposition at that time, on 12th of November 2015. The deadline for examining it would have been the 12th of May 2016. Consequently, the Court was working within a legal timeframe in examining it. Although our agenda is extremely full, the Court decided to deliver on this case prior to the expiry of the office of the current President of Moldova, so that the decision would be rendered effective and applicable. If the Court would have deliver following the launch of the election mechanism of the President by Parliament, it meant an intervention in electoral process and a change of rules of the game while playing. Now, however, since the term of office of the President has not expired yet, the mechanism of electing the President by the entire nation will be triggered in line with the new procedures, in the most foreseeable manner in this situation. A more proper occasion for solving this constitutional deadlock of more than 16 years did not exist.

Nevertheless, many were surprise by this decision…

– I was also taken by surprise to see, on 4th of March at Court’s sitting, only 2 cameras that usually broadcast live events, with no other media representatives. And this under the conditions that all news channels covered the topic of this complaint being lodged with the Court on 12 November 2015, and the sitting of 4 March was publicly announced. I was surprised indeed to see that it was only the MP Valeriu Ghileţchi who came before the Court. No other authors of the complaint of the 17 remaining ones came, though they were invited. No one expressed an interest for this case, which is now followed by such “rhetorical” questions as “why now?”

Along with traditional critics of the Constitutional Court of Moldova, I have noticed a reserved attitude of the IDIS Viitorul think tank’s CEO, Igor Munteanu…

– I can understand his dissatisfaction, all the more that I am aware of its true reasons… We know each other for a long time and due to this I believe I could make him a friendly suggestion. It is impossible to catch a black cat in an obscure room, all the more if it is not there… It would be useful that he recalls the way these professional cheaters had publicly tricked the first President of the Constitutional Court of Moldova, the late Mr Pavel Barbalat, providing him with guarantees that he will receive the votes in Parliament as a compromise figure, so that ultimately they did not cast their votes, not even those MPs who signed for him to be proposed as a candidate. It is the case for him to come out of illusions and to understand that this political promiscuity is not capable, by definition, to appoint a Head of State who would impose his authority in society. I have no doubt, the decision-makers would have accepted to only promote in this office a fully controlled person, which deprived of content the presidential institution.

– Mr Munteanu’s criticism did not refer solely to the last judgment. He also criticized the Constitutional Court of Moldova for having enlarged the number of subjects with access to the Court by way of “actio popularis”…

– He made a series of mistakes that are usually made by people with limited knowledge in constitutional law. Let me first of all make it clear that CCM did not “recognize citizens’ right to lodge petitions of unconstitutionality by way of actio popularis.” If Mr Munteanu wishes, I am ready to talk to him anytime in order to explain the difference between a petition of unconstitutionality by way actio popularis and the exception of unconstitutionality, which is actually a concrete review of constitutionality. It is also due the unfamiliarity with constitutional mechanisms the conclusion on “the risk on the excessive number of complaints which the Court will not be able to face.” If Mr Munteanu had consulted the studies on reform projects of the CCM, he would have found out to his surprise that, in fact, precisely these were the recommendations of the EU experts.

– Also, Maia Sandu described this judgment of the Court as “legally controversial”…

– In situations like this one, I remember the late Aureliu Busuioc which said that politicians and policemen have immediate answers to any question. I did not know she is a specialist in constitutional law. I always liked Maia Sandu, but I am not hiding that I have a reserved attitude towards those who have immediate answers to every question, all the more towards those who qualify as “controversial” and “suspect” judgments that they did not read and those who I think lack the necessary professional skills to make such assessments.

– Mrs Maia Sandu also said that declaring constitutional the age requirement was not justified.

– The Court decided to invalidate only those provisions which have generated institutional imbalances. In particular, there was a substantial modification of the initial draft law approved by the Court in respect of the amendment on 3/5 of the number of votes needed to elect the President in Parliament. It is exactly this amendment that has created deadlocks and permanent crisis. The Court ruled that the modification of the age from 35 to 40 years is not a substantial one and did not affect the essence and coherence of constitutional provisions in any way. Those who have another point of view would better argue on what institutional imbalances generated this technical amendment of 2000 until today, so as to justify its unconstitutionality. I would like to hear at least one argument on how the amendment of the age requirement affects the coherence of constitutional provisions.

– The same criticism was brought by Renato Usatîi. He claims that one again he was removed from the electoral race.

– Mr. Usatîi did not take part in any electoral race. Therefore, there was no way for him to be excluded. In this regard, the regulatory framework remained intact. I have learned that he is younger than 40 years after the judgment was delivered, from a former colleague from the Ministry of Justice. You can be assured that any of the remaining judges of the Court had not read his CV prior to deciding that the preservation of the age requirement is constitutional.

– Are there any other constitutional courts that examine laws amending the constitution?

– Definitely. The CCM’s Judgment of 4 March 2016 provides an exhaustive reasoning and is perfectly in line with its caselaw, with the practice of other constitutional courts and recommendations of the Venice Commission. Among the European states that practice a judicial review on the merits of constitutional amendments, the most common model is that ofGermany, the last judgment in this respect being the examination of the constitutional amendments of 2009 related to the Treaty of Lisbon. Examples where constitutional courts have invalidated amendments to the Constitution may be found in other countries with advanced democracies such as Austria, Bulgaria and South Africa. In 2013, the Constitutional Court of Lithuania, following 12 years from their adoption, invalidated amendments made to the Constitution in 2002, on the powers of the Central Bank of Lithuania since these amendments were adopted in breach of the procedures. Just like in the case of Moldova, the text of the draft law was unconstitutionally amended in Parliament. A very interesting case of judicial review of a constitutional amendment can be found in Turkey. In a judgment of 5 June 2008, the Court performed an examination on the merits of a constitutional amendment adopted which allowed for headscarves in universities. So we’re not even close to being the first Court which adopted such a judgment.

– Why was necessary the intervention of the Constitutional Court since the DA Platform (dignity & justice) initiated a referendum on the same matter? What will be the fate of this initiative?

– It would be ridiculous to ask a constitutional court to deliver judgments based on hypothetical chances of some political actors to organize a constitutional referendum. The Court was obliged to rule on this complaint, since the matter was brought before it. On a different note, I would like to remind you that a referendum was held in 2010 exactly on the same issue and the people did not vote. Therefore, there’s nothing that can guarantee the chances of success of such an initiative. Regarding the popular initiative filed in November 2015 at the Central Electoral Commission, the initiative group is welcomed to continue its work and try to hold a referendum on two other issues that it has raised (reduction of the number of MPs and exclusion of parliamentary immunity). This is possible due to the fact that CCM indicated to the organizers of the referendum to separate the questions and collect signatures for each question on subscription lists. Thus, although the election of the president is already out of question, the other two issues can be put to the vote.

– What form of government we will have in Moldova following the judgment of 4 March 2016?

– Moldova remains a parliamentary republic, except that the President will be elected by the whole nation. Similar models exist in the Czech Republic, Lithuania, Turkey, Finland etc. Therefore, any discussions about “CCM’s intervention on the reform of the political system” are pure speculation or unfamiliarity with the issue. Beyond the academic discussion on the name of the political system, I would like to point out that the CCM judgment does not affect any of the President’s powers. Moreover, there is a comprehensive CCM caselaw which balances and adjusts the role of the President within the parliamentary regime.

– What are the practical effects of the CCM judgment of 4 March 2016?

– Any institutional deadlock on the ground of non-election of the President shall be permanently avoided. This source of deadlock has been removed. The President will no longer be the subject of agreements and obscure bargains, but will be the emanation of the people, which holds the sovereignty of the state power. We will not attend anymore backstage arrangements in order to gather the votes needed to elect the Head of State, since it is more difficult to corrupt an entire nation, then only a certain individual. Therefore, the future President will enjoy a whole new level of legitimacy.

– What is the impact of the CMM judgment on the mandates and acts issued by the two presidents elected under the parliamentary procedure?

– The Court stated in clear terms that the judgment has no effect on the mandates of presidents elected by Parliament, as it does not have any direct and automatic impact on acts issued by the two presidents. Therefore, both mandates and acts of Mr Voronin and Mr Timofti are perfectly legitimate and legal and there is no doubt in this regard. Even the operative part of the judgment expressly indicates that it shall take effect only for the future.