The Constitutional Court delivered a negative Opinion on the joint initiative of PLDM and PSRM factions to revise the Constitution

On 29 February 2016 the Constitutional Court delivered its Opinion on the initiative of revising Articles 78, 85.4 and 89 of the Constitution (the procedure of election and removal from office of the President of the Republic of Moldova) [Application no. 8c/2016 -  in Romanian].

Circumstances of the case

The case originated in a joint application of a group of 37 MPs representing the factions of the PLDM (Liberal Democrats) and PSRM (Socialists), lodged with the Constitutional Court on 17 February 2016, requesting the endorsement of the initiative on revising Articles 78, 85.4 and 89 the Constitution.

In essence, the draft law was proposing the following:

(1) Restoring the provisions on electing the President by universal, equal, direct, secret and freely expressed ballot. Thereby it was proposed to replace the current regulation, which provides for the President of the Republic of Moldova being elected by a vote of three-fifths of the elected MPs.

(2) Restoring the institution of removal from office of the President of the Republic of Moldova by universal, equal, direct, secret and freely expressed ballot. Thus, the removal from office of the President of the Republic of Moldova shall occur in the event of having committed certain serious deeds infringing upon the provisions of the Constitution, found by the Constitutional Court or by the Supreme Court. The proposal for removal from office of the President of the Republic of Moldova, initiated by at least one third of MPs and supported by most of MPs, will be mandatorily followed by a referendum, and thereby the citizens of Moldova shall express themselves on the removal from office of the President. The draft law was also proposing to replace the current regulation, which provides for that the President of the Republic of Moldova may be removed from office by a vote of three-fifths of the elected MPs.

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 legislative proposal to revise the Constitution has been signed by a number of 37 MPs, i.e. by more than a third of the MPs. The Court found that the initiative to revise the Constitution has been submitted by the authorized subject and in this respect it meets the requirements of Article 141.1.b of the Constitution.

On the other hand, the Court held that removal from office for „serious violations of the Constitution" is in itself criticisable, since it is a source of confusion and ambiguity, both in regard to the content of such "violations" of the Constitution and in terms of the procedure and the competent authority entitled to find these violations, as well as in regard to the effects of such findings. 

The Court found that this provision creates a confusion between political liability and criminal liability of the President.

Moreover, the amendment brought to Article 89 of the Constitution entitles the Supreme Court of Justice to find severe violations of constitutional provisions committed by the President of the Republic of Moldova, which is contrary to Article 135.1.f of the Constitution that grants the exclusive competence of the Constitutional Court to find the circumstances which justify the removal from office of the President of Moldova, as the sole authority of constitutional jurisdiction and guarantor of the Constitution.

Excerpt from the complaint lodged with the Court, proposing the amendment to the Constitution described above:

The Court found that this amendment is unconstitutional, since it infringes upon the limits of revision provided for in Article 142 of the Constitution.

In this context, the Court underscored that one of the fundamental tasks of a constitutional court consists in securing the normative order arising from the Constitution. In this respect, the Constitutional Court Opinions on initiatives of revising the Constitution aim to protect the fundamental values of the Constitution from abusive practices of political, social or institutional actors. Therefore, any interventions in the text of draft law revising the Constitution, following the endorsement of the Constitutional Court, are not allowed and ignoring or exceeding it shall lead to the invalidity of such operated amendments.

Subsequently, taking into account the reasoning of the Constitutional Court provided in the descriptive part of the Opinion, the Court concluded that the legislative proposal on the revision of the Constitution could not be submitted for examination before the Parliament.

Additionally, the Court reiterated that a draft law revising the Constitution must envisage not only the way of electing and removing from office the President, but also to answer some key issues, including: to make a clear choice for a system of government; to clarify the powers of the President, and respectively, the powers of the PM and the Parliament; to introduce, among the founding principles of the constitutional system of the Republic of Moldova, the principle of mutual respect and loyal cooperation between the state powers provided for by the Constitution.

The arguments provided in the reasoning of this solution delivered by the Court will be presented in the text of the Opinion, which shall be published in the Official Journal of Moldova.

Opinion of the Court

Stemming from the above reasoning, the Constitutional Court found that, although the application has been submitted by the authorized subject under Article 141.1.b of the Constitution, the legislative proposal to amend the Constitution infringes upon the limits of revision provided for in Article 142 of the Constitution, since the amendment brought to Article 89 of the Constitution is unconstitutional, in terms of granting to the Supreme Court of Justice the competence of finding severe violations of the Constitution committed by the President of the Republic of Moldova.

Taking Court concluded that the legislative proposal on the revision of the Constitution could not be submitted for examination before the Parliament, considering the reasoning of the Court provided in the descriptive part of this Opinion.

The Opinion of the Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.

This press-release is also available in the original Romanian language version.