The Court Has Ascertained the Circumstances Justifying the Interim Office of President of the Republic of Moldova in Promulgating a Law

On 5 January 2018, the Constitutional Court of Moldova delivered the Opinion on the ascertainment of the circumstances justifying the interim office of the President of the Republic of Moldova in carrying out the constitutional duty to promulgate a law (Complaint no. 1f/2018).

Circumstances of the case

The case originated in the application lodged by Mr Serghei Sîrbu, Member of the Parliament, by which the Constitutional Court was asked:

"1) To ascertain the circumstances justifying the interim office of President of the Republic of Moldova in order to ensure the fulfilment of the constitutional duty to promulgate the Law no. 257 of 22 December 2017 amending the Broadcasting Code of the Republic of Moldova;

2) To ascertain the establishment of interim office of President of the Republic of Moldova in order to ensure the fulfilment of the constitutional duty to promulgate the Law no. 257 of 22 December 2017 amending the Broadcasting Code of the Republic of Moldova."

The author of the complaint argued in essence that, in order to overcome the institutional deadlock generated by the President of the Republic of Moldova following the infringement of the constitutional duty to promulgate the aforementioned law, it is necessary to establish the interim office of President.

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

Mr Tudor PANŢÎRU, Chair of the sitting,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges,

Findings of the Court

Having examined the case files and upon hearing the arguments of the parties, the Court held that, according to Art. 135 para. (1) let. f) of the Constitution, it is competent to ascertain the circumstances justifying the interim office of President of the Republic of Moldova.

The Court has held that, according to Article 93 para. (1) of the Constitution, the President of the Republic of Moldova promulgates the laws. In its case-law the Court ruled that promulgation of a law is the final stage of the legislative procedure and allows the head of state to make the law enforceable, thus obliging the public authorities to enforce the provisions thereof (JCC No.3 of 28 February 1996).

Moreover, according to Article 93 para. (2) of the Constitution, the President is entitled, whenever he has certain objections regarding a law, to submit it within two weeks at the most to the Parliament for reconsideration. Should the Parliament abide by its previously adopted decision, the President promulgates the law.

In that regard, the Court recalled that in its Judgment of 9 February 1998 it ruled that from the wording of Article 93 of the Constitution it clearly results that the Head of State is entitled to send the law which he objects for reconsideration only once (JCC No.3 of 28 February 1996).

The Court noted that the right of the President to refuse on reasonable grounds the promulgation of a law only once constitutes a solution that intended to eliminate the institutional deadlocks that could arise following the repeated refusal of the President of the Republic of Moldova to promulgate a law in respect of which the Parliament maintains its previous decision.

Thus, the Court found that within the procedure of promulgation of laws, the President of the Republic of Moldova has the right to submit objections in respect of the law voted by the Parliament only once, however the President has no veto power over the adopted law, as the given law is by excellence the output of the Parliament, as the sole legislative authority of the state.

In the present case the Court found that on 20 December 2017, the President of the Republic of Moldova, pursuant to Article 93 para. (2) of the Constitution, sent to the Parliament for reconsideration the Law no. 257 amending the Broadcasting Code of the Republic of Moldova. As a motivation for such a decision, the President objected that the given law unduly impedes freedom of opinion and expression as well as the right to information, contrary to Articles 32, 34 and 54 of the Constitution.

The Court held that, although on 22 December 2017 the Parliament maintained its vote in respect of the Law no. 257, on 4 January 2018 the President refused, contrary to the clear provisions of Article 93 para. (2) of the Constitution, to promulgate it, invoking "[...] the supreme interest of the citizens of the country, [...] the importance of international acts impacted by the criticized norm and [...] the unconstitutional character of this law".

In this context, the Court recalled its previous statements that, given the imperative nature of Article 93 of the Constitution, in the case the Parliament repeatedly votes a particular law, the President is under the obligation to promulgate it, despite any doubts in respect of the constitutionality of the adopted law (JCC No.9 of 14 February 2014). The possibility to submit a complaint to the Constitutional Court with a view to carry out the constitutionality review of the law prior to its publication has no direct impact on the promulgation procedures. Thus, in the event of promulgation of the contested law until the delivery by the Constitutional Court of a ruling in regard thereof, the procedure of a priori control of constitutionality of the law continues in the framework of a posteriori control.

The Court notes that the President was under the constitutional duty to promulgate Law no. 257 of 22 December 2017, repeatedly voted by the Parliament, regardless of any doubts related to the constitutionality thereof.

Under such circumstances, the Court found that the refusal of the President of the Republic of Moldova to fulfil the constitutional duty of promulgation of the Law no. 257 of 22 December 2017, in respect of which the Parliament maintained its previously adopted decision, constitutes a violation of the clear imperative rule provided in Article 93 of the Constitution and, accordingly, of the oath taken upon the investiture in the office. In this context, the Court considered it necessary to reiterate its Address to the Parliament with a view to regulate the liability (including criminal one) for non-fulfilment of constitutional duties and non-enforcement of Constitutional Court judgments.

Therefore, given that the President deliberately refused to discharge its constitutional duty to promulgate the Law no. 257 of 22 December 2017, the Court held that, in the spirit of Article 91 of the Constitution, the President finds himself in a temporary impossibility, given subjective reasons (lack of will) to discharge the respective duty, which represents a justification for the establishment of the interim office in order to fulfil this constitutional duty. As a matter of fact, by deliberately refusing to fulfil the constitutional duty, the President has withdrawn himself from carrying out thereof.

Under Article 91 of the Constitution, with a view to discharge the interim office of President of the Republic of Moldova, the Speaker of the Parliament or the Prime Minister, acting as interim President, shall issue the Decree on the promulgation of the Law no. 257 of 22 December 2017amending the Broadcasting Code of the Republic of Moldova.

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 legislative procedure the deliberate refusal of the President to fulfil the constitutional duty to promulgate the Law no. 257 of 22 December 2017 amending the Broadcasting Code of the Republic of Moldova, in respect of which the Parliament maintained its previously adopted decision, which constitutes, in the sense of Article 91 of the Constitution, a temporary impossibility to fulfil the particular competence.

2) Under Article 91 of the Constitution, the Speaker of the Parliament or the Prime Minister acting as interim President will issue the Decree on the promulgation of the Law no. 257 of 22 December 2017 amending the Broadcasting Code of the Republic of Moldova.

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