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20.10
2017

The Court Has Ascertained the Circumstances Justifying the Interim Office of President of the Republic of Moldova in Nominating the Defence Minister

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On 20 October 2017, the Constitutional Court of Moldova delivered an Opinion on the ascertainment of the circumstances justifying the interim office of the President of the Republic of Moldova in nominating a minister.

Circumstances of the case 

The case originated in an application lodged with the Court by the Government of the Republic of Moldova, asking:

”1. To ascertain the circumstances justifying the interim office of the President of the Republic of Moldova in order to ensure the exercise of constitutional duties to nominate the candidate proposed by the Prime Minister of the Republic of Moldova for the office of Defence Minister and entering into office.

2. To ascertain the establishment of interim office of the President of the Republic of Moldova in order to ensure the exercise of constitutional duties to nominate the candidate proposed by the Prime Minister of the Republic of Moldova for the office of Defence Minister and entering into office.”

The application was examined by the Constitutional Court in the following composition:

Mr Veaceslav ZAPOROJAN, Chair of the sitting,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,  judges.

Conclusions of the Court

Upon hearing the reasoning of the parties and following the examination of the casefiles, the Court noted that under Article 135.1.f of the Constitution it enjoys the competence to ascertain the circumstances justifying the ad interim office of President of the Republic of Moldova.

The Court mentioned that in line with the Judgment of the Constitutional Court no. 28 of 17 October 2017, the Government is entitled to apply to the Constitutional Court in cases related to its area of competence, requesting a check on the circumstances justifying the interim office of President of the Republic of Moldova.

In this particular case which refers to the reshuffling the Defence Minister, the Court noted that this application falls within the competence of the Government and has been therefore lodged by a subject entitled to apply before the Court.

The Court dismissed the reasoning of the representative of the Presidency that the application lodged by the Government should not be accepted for examination due to the fact that it has not been published in the Official Journal of the Republic of Moldova. The Court underlined that the application lodged with the Court by the Government, which is a collegiate body, despite being approved by a Government Decision, is not in itself a normative act and does not need to be published in the Official Journal.

The Court also rejected dismissed the allegation of the representative of the Presidency of the Republic of Moldova that the Judgment of the Constitutional Court no. 28 of 17 October 2017 is not applicable to this institutional conflict between the President and Prime Minister, as it was delivered following the second refusal of the President to nominate the candidate proposed repeatedly by the Prime Minister.

In this regard, the Court underlined that this institutional deadlock – generated by the refusal of the President to nominate the candidate who was proposed repeatedly for the office of Defence Minister – is not a fait accompli, but on the contrary, a situation which continues to produce its effects.

Subsequently, the Court noted the findings of the Judgment no. 2 of 24 January 2017 which allow for one single, reasoned, refusal of the President of Moldova to nominate the candidate for the vacant office of Minister upon the proposal of the Prime Minister, in case he considers that the proposed candidate does not meet the legal requirements for a Cabinet office.

Concurrently, the Court held that the Prime Minister may come with another proposal to the President or reiterate the same candidature for the office of Minister, that the President is bound to nominate.

The Court found that, in this case, the President of Moldova refused to nominate for the office of Defence Minister the candidate proposed by the Prime Minister, alleging the lack of professional training in the field, lack of knowledge in respect of military management and lack of authority within the Armed Forces.

The Court noted that in his refusal the President did not indicate what were the legal requirements for the nomination of Government members provided by Article 16 (1) and (2) of the Law on the Government which the candidate proposed by the Prime Minister had failed to meet.

Therefore, the Court found that contrary to his constitutional duties, the President of Moldova refused to nominate for the office of Defence Minister the candidate proposed by the Prime Minister.

Subsequently, the Court held that the refusal of the Prime Minister to fulfil his constitutional duty to nominate the candidate proposed repeatedly by the Prime Minister and to execute the Judgment of the Constitutional Court no. 2 of 24 January 2017 amount to a serious violation of his constitutional duties and of the oath taken when sworn in.

Furthermore, considering that the President refused deliberately to meet his constitutional obligation to nominate the candidate proposed repeatedly by the Prime Minister for the office of Defence Minister, the Court held that in the spirit of Article 91 of the Constitution, the President finds himself in a temporary impossibility to discharge the respective duty, which represents a justification for the establishment of the interim office in order to fulfil this constitutional duty.

Under Article 91 of the Constitution, when exercising the interim office, the Speaker of Parliament or the Prime Minister, as an interim President, shall issue the Decree on the nomination [of the candidate] for the office of Defence Minister and shall receive the oath.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

1.    Ascertained as a circumstance justifying the interim office of the President of the Republic of Moldova– within the procedure of reshuffling of the Defence Minister – the deliberate refusal of the President to execute his constitutional duty to nominate the candidate who was proposed repeatedly by the Prime Minister, which constitutes, in the sense of Article 91 of the Constitution, a temporary impossibility to fulfil the respective duty.

2.    Under Article 91 of the Constitution, in order to exercise the ad interim office of President of the Republic of Moldova, the Speaker of Parliament or the Prime Minister shall issue, in the capacity of interim President, the decree on the nomination of the office of Defence Minister and shall receive the oath.

This Opinion of the Constitutional Court is final, cannot be subject to any appeal, enters into force as of the date of adoption and is published in the Official Journal of Moldova.

 

This is an English language courtesy translation of the original press-release in Romanian language.

 
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