Maintaining in office of the PM of a Government dismissed for reasons of corruption is unconstitutional

Press Release

22.04.2013 

Maintaining in office of the PM of a Government dismissed for reasons of corruption is unconstitutional  

(Complaint № 10a/2013)

On 22 April 2013 the Constitutional Court ruled on the constitutionality review of the Decrees of the President of the Republic of Moldova № 534-VII from 8 March 2013 on the dismissal of the Government, with regards to the part of Prime Minister dismissal by a no confidence vote (for suspicion of corruption) maintaining in the office from 8 March 2013 until the formation of a new government and the Decree № 584-VII from 10 April 2013 on the nominalisation of the candidate for the office of Prime Minister (Complaint № 10a/2013). The decision has been sent for publication in the Official Gazette (Monitorul Oficial). 

Circumstances of the case

By its Decision № 28 from 5 march 2013, the Parliament had casted a no confidence vote (motion of no confidence) to the Government of the Republic of Moldova, run by the Prime Minister Vladimir Filat. The no confidence vote had been casted, mainly, on suspicions of corruption and other related issues.

On 8 March 2013, Prime Minister Vladimir Filat has submitted to the President of the Republic of Moldova the resignation of the Government.

On the same day, the President had signed the Decree № 534-VII accepting the resignation of the Government. By the same decree, the head of the state has disposed that the resigned Government shall only perform the duties of administering public issues till the members of the new Government will swear the oath.

By the Decree № 584 from 10 April 2013, the President of the Republic of Moldova has nominated Vladimir Filat as the candidate for the office of Prime Minister, being given the authority to draw up the programme and list of the Government in order to submit them to the Parliament for examination.

The authors of the complaint have particularly claimed that the no confidence vote of the Parliament for reasons of corruption places the resigned Prime Minister in the position of political and moral unfitness, subsequently, in the impossibility to carry on in the office, this being the reason for the President of the Republic of Moldova to nominate an add interim Prime-Minister from the members of the Government.

In the same context, the authors of the complaint have implied that a Prime-Minister holding the office of a government dismissed for reasons of corruption is contrary to the rule of law principle.

In the same context and for the same reasons, the authors of the complaint have implied that it is incompatible with the rule of law principles the nomination of such a person for the office of Prim Minister when forming the new Government.

Proceedings

The case originated in the complaint logded at the Constitutional Court on 11 April 2013 by the deputies Mihai Ghimpu, Valeriu Munteanu, Ion Hadârcă, Corina Fusu, Boris Vieru, Gheorghe Brega, Vadim Cojocaru, Oleg Bodrug on the interpretation of the articles 98, 100, 101, 103, 106 of the Constitution, which regulate the dismissal of the Government as a result of a no confidence vote by the Parliament.

Later, the authors of the complaint have partially amended the reasoning and scope of the complaint, inquiring the Court to review the constitutionality of the Decrees of the President of the Republic of Moldova № 534 from 8 March 2013 and № 584 from 10 April, from the rule of law perspective, established by the article 1 para. (3) of the Constitution.

The complaint has been examined by the Constitutional Court in the following composition:

Mr. Alexandru TĂNASE, President,

Mr. Aurel BĂIEŞU,

Mr. Igor DOLEA,

Mr. Tudor PANŢÎRU,

Mr. Victor POPA,

Mr. Petru RAILEAN, judges.

Conclusions of the Court

Having heard the reasoning of the parties from the submitted complaint, the Court noted that it essentially aims the possibility of the Prime Minister to continue holding the office in a Government brought down by a vote of no confidence for corruption suspicions.

The Court held that every time there is inquired the constitutionality review of the juridical acts along with the interpretation of constitutional provisions, there by the default the constitutionality review includes the interpretation of the respective provisions.

The Court noted that in this case, the inquiry on the constitutionality review absorbs the inquiry of interpreting the constitutional norm.

The Court noted that the rule of law principle, established by the article 1 par. (3) of the Constitution Preamble, refers to the Constitution in its wholeness.

The Court also held the following : corruption undermines democracy and the rule of law state and, subsequently, fighting corruption is an integral part of assuring the respect for the rule of law.

The Court stated, as a principle, that any political mandate has to be based on high standards of integrity. Additionally, in case that it is found that this condition is not fulfilled, ignoring these findings and the appointing in/ holding  leading positions of individuals having cast doubt on their integrity implies a disrespect for the rule of law state.

The Court held that, in a genuine democracy, normality resides in the immediate resignation of the individuals that have lost their public trust, with no need of being dismissed. In this regard, the Court has implied the example of France , where a special practice has been developed for such cases, called Bérégovoy-Balladur, which establishes that accusing a minister (or even the Prime-minister) of committing some reprehensible acts, even lacking the existence of judicial documents, leads to his resignation or to his immediate removal from the office (there have been confirmed 11 such cases during the 5^th Republic). Following the same logic, in Germany, the President resigned due to the obtaining a credit in preferential conditions, and the Minister of Education and the Minister of Defense - for the suspicion of plagiarism. Similarly, the President of Hungary resigned following accusations of plagiarism.

In the same context, the Court has mentioned the position of the European Commission in respect of similar situations: it is essential for the credibility of a Government that the persons who perform ministerial positions enjoy public confidence ,  for instance, by submitting the resignation when there is a file against them on matters of integrity.

The Court held that such situations, in which people are being removed from exercising governmental act for reasons of corruption, subsequently being again appointed in top positions of the state (at short periods of time, without there being proved the groundlessness of the accusations that determined the dismissal) are not only reprehensible, but even inadmissible.

In this context, the Court has decided that it is contrary to the principles of the rule of law the appointment as high ranking officials individuals on which there is cast doubt regarding their integrity or who have been dismissed for reasons of corruption.

In light of the above stated, the Court held, as a matter of principle, that the rule of law is not a fiction, with only a declarative nature. The functioning of the rule of law has to be shown in practical actions.

The Court observed that, in order for the constitutional principle of the rule of law to be respected and taking in consideration the common interest of the citizens, it is imperative to take the necessary measures for assuring the quick application of the suspension or dismissal of the ministers and other high ranking officials that are subject to reasonable doubts in matters of integrity.

The Court noted that the decision approved on the 5^th March 2013 on the Motion of no confidence , by which the Government was dismissed, has been taken on the background of sounding scandals of corruption, with the involvement of some members of the Government and other governmental officials.

The Court mentioned that, although the Government has declared the objective of fighting corruption, in line with to the Motion of no confidence adopted by the Parliament, there are cases of individuals that are investigated for actions of corruption among ministers and other governmental officials.

The Court noted that the facts described in the Motion of no confidence, adopted by the Decision of the Parliament, are being confirmed by the information of public interest, which was licked/published in mass-media, as well as by the information obtained from the criminal investigation authorities.

The Court stressed that it commenced from the presumption that the Parliament, by approving the Motion of no confidence, has operated with a high degree of responsibility, pertinent to the people's supreme representative body.

At the same time, the Court has mentioned that it is an established fact that the accusation of corruption have not lead neither to resignation, nor to Prime Minister's initiative to suspend/dismiss from public service the ministers and other senior officials in this regard. On the contrary, the Court and the entire society have assisted to attempts of obstructing the work of the criminal investigation authorities, as the request for the resignation of the head of National Anticorruption Center or the imposing of prohibition to assist to the Governmental sittings.

In light of the above mentioned, the Court concluded that maintaining in office a Prime Minister dismissed for reprehensible acts represents a contempt for the of the rule law principles and for the principles of integrity, thus jeopardizing the stability of democratic institutions. In Court's view, it is inadmissible that a Decision of the Parliament, that has expressed the vote of non-confidence for a Government lead by a Prime-minister accused for acts of corruption, to be disconsidered and ignored, at least as long as the contrary has not been proven and the groundlessness of the suspicions has not been proven.

In the light of the above mentioned, the Court has reaffirmed, as a matter of principle, the findings of the European Commission that it is essential for the credibility of a Government to have people in ministerial position who enjoy public trust, for instance by resigning when there are suspicions against them in matter of integrity.

The Court stated that a Prime Minister, who has tolerated in Government ministers suspected for corruption, in respect of whom there have been initiated criminal investigations, manifested contempt for the rule of law principles and denotes an obvious lack of integrity, becoming in this manner incompatible to hold the office.

The Court held that, maintaining in the office of Prime Minister a person who has led a Government that was removed from the governing process for suspicions on acts of corruption, is irreparably damaging the controlling function of the Parliament as the supreme body of state power.

At the same time, given the fact that the Government carries out the state domestic and foreign policy and exercises the general leadership of public administration [Article 96 para. (1) of the Constitution], the maintenance of some persons in the composition of the Government, against whom there are serious doubts that discredit the governing integrity, in general, both internally and externally, and undermine the government's ability to perform the governmental act and undertake the dialogue with foreign partners.

The Court held that from the content of Article 101 para. (2) of the Constitution follows clearly that the Supreme Law makes a distinction between two distinct situations of impossibility to exercise the mandate of the Prime Minister:

      (a) Temporary impossibility, where the Prime Minister can return to work in government;

      (b) Definitive impossibility, in which case, the Prime Minister cannot any more return to work in the Government "before the formation of a new government".

In this context, the Court held that the Prime Minister of a dismissed Government through motion of no confidence on suspicion of corruption is incompatible with exercising the function and is definitively unable to continue the mandate.

The Court held that Articles from the Presidential Decree no. 534 of March 8, 2013 apparently does not contravene to the provisions of Article 103 para. (2) of the Constitution. At the same time, the Court held that the absence of provisions in Decree no. 534 of 8 March 2013 on the appointment of interim Prime Minister constitutes an omission. The Court found that this omission has occurred as a result of applying the provisions of Article 103 para. (2) of the Constitution, without being correlated with Articles 1 para. (3) and 101 para. (2). Having regard that the Decree no. 534 was issued before the current interpretation of the relevant constitutional provisions, the Court did not consider it necessary to invalidate the Decree on the ground of the found omission. Thus, the Court held that in order to correct this omission, the President has to nominate a add interim Prime Minister, in accordance with the provisions of Articles 1 para. (3) Article 101. (2) and Article 103 para. (2) of the Constitution, as interpreted by the Court in this case.

In part that related the nomination of the add interim Prime Minister, the Court held that the interim is a transitory situation designed to promptly ensure the continuity of Government work on the administration of public affairs. With regard to all the powers of the President in the area of executive powers, as well as, taking into account that the government is the result of Parliament investiture vote, the President is not obliged to consult parliamentary fractions to designate an interim prime minister. On the other hand, nothing forbids the President to consult their opinion regarding the option for one or the other member of the Government to be nominated as an ad interim Prime Minister. At the same time, the Court noted that it should take into account the political responsibility hierarchy reflected in the structure of government under the Constitution (the Prime Minister, the First Deputy Prime Minister, Deputy Prime Ministers, Ministers and other members as determined by organic law).

In part related to nomination of the person for the position of Prime Minister, the Court reiterated that a Prime Minister of a government dismissed by a no confidence motion on suspicion of corruption, thus showing contempt of the rule of law principles and demonstrating a lack of integrity, became in this manner incompatible with the exercise of senior public offices. Therefore, nomination of such a person for the position of Prime Minister is contrary to the rule of law principles (Article 1, para. (3) of the Constitution).

At the same time, establishing a high level of accountability of senior state officials, the Court pointed out that, on several occasions, the European Court of Human Rights found the use of the prosecution, of justice and the media for the purpose of settling accounts on political or economic reasons (see, inter alia, case Şarban v. Moldova, on 4 October 2005, Becciev v. Moldova 4 October 2005, Cibotari v. Moldova on 13 November 2007, Muşuc v. Moldova on 6 November 2007 Megadat . com v. Moldova on 8 April 2008, Dacia v. Moldova on 18 March 2008, Petrenco v. Moldova 30 March 2010).

In the light of these aspects, as well as given the devastating consequences on the reputation and public image that can cause by attracting to criminal prosecution or submission of media attacks on order, the Court warned on the inadmissibility of the illegal use of legal institutions and the media for political purpose. For these reasons, the Court reserved the right to examine in the last resort and with great attention all documents within its jurisdiction under Article 135 of the Constitution that aimed removal from nomination to public offices of persons suspected for acts of corruption.

Reiterating the fact that the presumption of innocence under Article 21 of the Constitution as a principle in a criminal trial is inapplicable to political liability, the Court pointed out that none of its findings above cannot have any impact on the eventual criminal trials.

Court Judgment 

Commencing with the reasoning put forward above, the Constitutional Court unanimously recognized as constitutional the Presidential Decree no. 534-VII of March 8, 2013 on the resignation of the Government. The Court also declared unconstitutional the Presidential Decree no. 584-VII of April 10, 2013 on the nomination of the candidate for Prime Minister. The Court also explained that the meaning of Article 1 para. (3), Article 101 para. (2) and Article 103 para. (2) of the Constitution:

-          The Prime Minister of a Government dismissed through motion of censure for suspicion of corruption is unable to perform his duties;

-          In the case of Government dismissal through motion of censure for suspicion of corruption, the President of the Republic of Moldova has the constitutional obligation to nominate a add interim prime minister among the government members whose integrity was not affected;

-          The President of the Republic of Moldova is not obliged to consult the parliamentary fractions to designate an interim prime minister.

The Constitutional Court judgment is final, cannot be subjected to any appeal, enter into force on the date of adoption and is published in the Official Gazette of the Republic of Moldova.

The full text of the judgement is available on the website of the Constitutional Court http://www.constcourt.md/

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