On 10 November 2015 the Constitutional Court delivered its opinion on the civic initiative of revising by republican referendum Articles 60, 70, 78 and 89 of the Constitution (Application no. 45c/2015).

Circumstances of the case

The case originated in the application lodged with the Constitutional Court on 6 November 2015 by the Central Electoral Commission, which requested an Opinion on the civic initiative to revise by republican referendum Articles 60, 70, 78 and 89 of the Constitution.

On 5 November 2015, the Central Electoral Commission has received a set of documents for the registration of a civic initiative group which aims to conduct a republican constitutional referendum.

According to the submitted documents, the issue expected to be subject of a republican referendum concerns the revision of the Constitution of the Republic of Moldova. The set of documents comprised also a draft law on the subject.

Stemming from legal requirements, the Central Electoral Commission shall decide on the request for registration of the initiative group following the Court’s examination of the constitutionality of the draft law on amending and supplementing the Constitution of the Republic of Moldova.

The civic initiative stands for the organisation of a decisional national constitutional referendum. It is intended to subject a draft law for the amendment of the Constitution to a republican referendum. The essence of this draft law is expressed by the following abstracts:

“1. Are you for the amendment of Article 60.2 of the Constitution, in view of reducing the number of MPs, by substituting the number 101 with 71? – Pro. – Against.

2. Are you for the repeal of Article 70.3 of the Constitution, which stipulates that the MP may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanour, or sued at law without the prior consent of the Parliament and upon hearing of the member in question? – Pro. – Against.

3. Are you for the amendment and supplementation of Article 78 of the Constitution, in view of electing the President of the Republic of Moldova by way of a universal, equal, direct, secret and freely expressed ballot? – Pro. – Against.

4. Are you for a new wording of Article 89 of the Constitution, which shall provide that in the event the President of the Republic of Moldova commits certain deeds infringing upon the provisions of the Constitution, the motion requesting the removal from office shall be initiated by at least one third of the members of Parliament and the referendum for removing the President shall be conducted within 70 days? – Pro. – Against.

In essence, the draft law proposes:

(1) Reduction of the number of MPs from 101 to 71.

(2) Exclusion of parliamentary inviolability. The provision stipulating that “the MP may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanour, or sued at law without the prior consent of the Parliament and upon hearing of the member in question” shall be repealed.

(3) Return to President’s election by way of universal, equal, direct, secret and freely expressed ballot. It proposes the replacement of the current regulation, which provides that the President of the Republic of Moldova is elected by a vote of three-fifths of the elected MPs.

(4) Return to the suspension from office, by Parliament, of the President of the Republic of Moldova and his/her removal from office by way of universal, equal, direct, secret and freely expressed ballot. Thus, in the event the President of the Republic of Moldova commits serious infringements of the provisions of the Constitution, he/she may be suspended from office, following an Opinion of the Constitutional Court. Initiated by at least one third of the members of Parliament and supported by a majority of MPs, the suspension from office of the President of the Republic of Moldova shall be mandatorily followed by a referendum, with citizens of the Republic of Moldova having their say on President’s removal. The proposal aims at replacing current regulations, which provides that the President of the Republic of Moldova may be removed from office by the Parliament with the vote of a majority of two thirds of its elected members.

The Constitutional Court ruled on the application in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

The Court noted that the Supreme Law contains express provisions only on the revision of the Constitution by the Parliament. The possibility of revising the Constitution by way of referendum was enshrined solely by the jurisprudence of the Constitutional Court.

Previously, the Court ruled on the regulations governing the revision of the Constitution by way of referendum (Opinion no. 1 of 22 September 2014). On this occasion, the Court held that in the case of a decisional constitutional referendum, the cumulative fulfillment of the requirements of validity inherent to the revision of the Constitution (1) and those concerning the validity of the referendum (2) is necessary.
Following deliberations, the Court found that the provisions of the draft law on the revision of the Constitution are not contrary to the constitutional provisions and that the legislative proposal for constitutional revision does not infringe upon the limits of revision.
The Court held that the draft law on the revision of the Constitution may be submitted to a referendum following at least 6 months from the date the initiative to amend the Constitution, respecting the considerations outlined in the descriptive part of the Opinion.
In this regard, the Court held that in the case of the civic initiative of revising the Constitution, the 6 months term, within which the constitutional draft law cannot be adopted, encompasses the period following the registration of the initiative group at the Central Electoral Commission, collection of signatures and verification of subscription lists.
The Court also held that, following the adoption of a decision on initiating a referendum by the Central Electoral Commission, the Parliament has the constitutional duty to set with no delay the date and to allocate the necessary financial means for conducting the republican referendum, provided for by the law. Thus, the Parliament cannot censor or block people’s possibility to decide by way of referendum the revision of the Constitution.
The arguments held in the reasoning of the solution pronounced by the Plenum of the Constitutional Court will be delivered in the content of the Opinion, which is to be published in the Official Gazette.
Opinion of the Court
Stemming from the above reasoning, the Constitutional Court found that the initiative on revising Articles 60, 70, 78 and 89 of the Constitution does not exceed the limits on the revision of the Constitution imposed by constitutional provisions from Article 142.2 and may be submitted to a referendum.

This Opinion is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.

This press-release is also available in Romanian.