On 14 May 2019, the Constitutional Court gave an interpretation to a number of constitutional provisions following an application made by Mr. Igor Dodon, the President of the Republic of Moldova.
The applicant asked the Constitutional Court to explain the following:
- Whether the President of the Republic of Moldova is under the duty to initiate consultations with parliamentary factions and to propose a candidate to the office of Prime Minister, even where the Parliament has no leadership?
- Whether where there is no plenary sitting of the lawmaking authority to examine the investiture of a Government or where it is impossible for it to assemble due to the non-existence of an unit in place to convene it, would this amount to a tacit rejection and/or would it mean that the proposed nomination of the Prime Minister was not supported? And does such a situation imply that a no confidence vote might be cast for the Government investiture?
- Whether the President of the Republic of Moldova may propose the same candidate to the office of Prime Minister or shall he nominate a new candidate following the expiry of the 15 days time-limit provided by Article 98 para. (2) of the Constitution? – This being a time limit for the candidate to the office of Prime Minister in order to seek a confidence vote to be cast, by the Parliament, for the governing programme and cabinet members?
The Court’s assessment
As regards the constitutional duty of the President to initiate consultations of parliamentary factions to nominate a candidate for the office of Prime Minister, the Court emphasised that it clearly derives from the text of Article 98 of the Constitution. The duty to consult parliamentary factions can be fulfilled independently of the election of the Speaker of Parliament and, in general, independently of the leading units of the legislator. Forming parliamentary factions is a separate process from the election of the Speaker. Moreover, consultation of parliamentary factions by the President may be conducted prior to, in between or following negotiations of those parliamentary factions, in a different framework, on the election of a Speaker. The Court observed that unlike the duty to consult parliamentary factions on a prospective candidate to be nominated to the office of Prime Minister, the duty to propose a candidate to this office depends on whether or not leading units are put in place in the Parliament.
The Court emphasised that, in order for the President of the Republic of Moldova to propose a candidate to the office of Prime Minister, the former must have, first of all, an institutional dialogue with the Speaker as a partner representing the Parliament. This is the framework established by Parliament's Rules, referred to by the provisions of Article 64 para. (1) of the Constitution. Secondly, the leading units which make it possible for the Parliament to be convened for sittings have to be selected, i.e. the Standing Committee and the Speaker. Under Article 13 para. (1) let. a) of Parliament’s Rules, the Standing Committee proposes to the Parliament the date of plenary sitting, and under Article 14 para. (1) let. b) of the said Rules, the Speaker convenes ordinary, extraordinary or special sittings of the Parliament. The Court therefore highlighted the following two constitutional duties: the President is under the duty to consult parliamentary factions in view of a possible nomination of a candidate to the office of Prime Minister and the MPs are under the duty to select the leading units of the legislator, which inter alia also pursues the aim of making it fully possible for the nomination of a candidate to the office of Prime Minister to be made.
The non-existence of the unit representing the Parliament, on the one hand, and non-existence of the units in charge of convening its sitting, on the other hand, prevent the President of the Republic of Moldova from nominating a candidate to the office of Prime Minister. The circumstances in question do not amount to a tacit rejection or a lack of support for the “proposed candidate,” due to the fact that a candidate cannot even be proposed. However, should the Parliament be represented and its leading units selected, the President of the Republic of Moldova may nominate a candidate for the office of Prime Minister. The failure of the MPs to convene in plenary sitting aiming at examining the issue of a Government investiture amounts, in this case, to the investiture request being declined.
According to Article 85 para. (1) of the Constitution, in the event of an impossibility to form the Government, the President of the Republic of Moldova may dissolve the Parliament, following consultations with parliamentary factions. The second paragraph of this article provides that the Parliament may be dissolved, if it did not accept the vote of confidence for the formation of the new Government within 45 days following the first request and only after at least two requests of investiture were declined.
One of the issues raised by the President of the Republic of Moldova was the identity of the candidates nominated to the office of Prime Minister who come with the investiture requests.
The Court noted that the phrase “two requests for investiture” provided in the second paragraph of Article 85 of the Constitution must be interpreted in light of Article 98 para. (2) and (3) of the Constitution, corroborated by the considerations set out by the Constitutional Court in Judgment no. 32 of 29 December 2015.
In Judgment no. 32 of 29 December 2015, the Court noted that the President must nominate as a candidate for the office of Prime Minister a person who enjoys the support of the parliamentary majority and not a person who he prefers, but that does not enjoy such a support. The President of the Republic of Moldova can conclude that there is a parliamentary majority from the very context of consultations with the parliamentary factions, bearing in mind that the parliamentary factions whose members, together, form the majority needed to cast a vote of confidence for the Government may propose a candidate to the President. At the same time, the Court emphasised that, unless an absolute parliamentary majority is formed, the President of the Republic of Moldova is under the duty to nominate, after consulting the parliamentary factions, a candidate for the office of Prime Minister, even if the parliamentary factions disagree with his proposal.
As a rule, declining an investiture request made by the Parliament is not a rejection of the candidate’s person, but a rejection of the programme of activity and of the list of members of the Government he presents before the Parliament. The possibility of a second request for investiture mirrors the opportunity for this candidate to make changes to the programme or to the list of members of the Government he is presenting before Parliament, so that he could secure a confidence vote under Article 98 para. (2) of the Constitution.
However, in practice, unexpected situations may occur at the date of the consultations, as regards the person of a candidate. If a rejection of a request for investiture would only focus on the candidate’s person, as an exception, another candidate could be proposed, but only after a new round of consultations with the parliamentary factions is initiated and in compliance with the conditions arising from the Judgment of the Constitutional Court no. 32 of 29 December 2015.
The Court’s conclusions
Stemming from the above, the Constitutional Court decided the following:
- The President of the Republic of Moldova may not propose a candidate to the office of Prime Minister in the absence of Parliament’s leading units. Where an impossibility is found for the Parliament to convene due to the non-existence of the leading unit in charge, this implies the impossibility of the President of the Republic of Moldova to nominate a candidate to the office of Prime Minister.
- Where there is no plenary sitting of the lawmaking authority convened to examine the investiture of a Government or where there are units in place to convene the legislator, this would this amount to a tacit rejection of the request for investiture.
- The phrase “at least two requests for investiture” contained in Article 85 para. (2) of the Constitution does not necessarily imply the nomination of the same candidate.
This judgment is final, it cannot be appealed, entering into force upon adoption and shall be published in the Official Journal of Moldova.
This a courtesy translation of the original text available in Romanian language.