The Constitutional Court of Moldova: No Competition Between the President and the Parliament in Defence Policy

On Friday, 21 December 2018, the Constitutional Court of Moldova delivered a judgment on the interpretation of a number of Articles of the Constitution and applied a constitutional review of a Parliament’s decision, following an application lodged with the Court by the President of the Republic of Moldova, Mr. Igor Dodon.

The applicant asked the Court to shed light on the following aspects:

1) Does the Parliament have the competence to adopt policy documents on national defence with no agreement of the Commander in Chief  of the Armed Forces and/or of the Government?

2) Does the President of the Republic of Moldova bear personal responsibility for the State’s defence capabilities?

3) Is the President of the Republic of Moldova entitled, considering his powers in national defence, to approve other measures on national security and defence, which were not included and/or were not endorsed by the Parliament?

The applicant also asked the Court to apply a constitutional review on the adopting procedure of the Parliament’s Decision no. 143 of 19 July 2018 on approving the National Defence Strategy and of the Action Plan implementing the National Defence Strategy for 2018-2020.

The Court’s assessment:
The Court commenced its assessment by studying the issue of defence related competences of the President of the United States of America, as conceived by the Founding Fathers of the American Constitution, and it also considered a relevant judgment of the US Supreme Court. It observed that the competences of the President in defence matters were largely debated in that country. Moreover, the US political system is a purely presidential one. The Court explained that this undertaking may serve as basis for making use of the a fortiori argument in case of the Republic of Moldova, which is a parliamentary state.

The Court observed that the basic principles on defence endorsed by the framers of the American Constitution were those of shared power in foreign affairs and the cardinal tenet of republican ideology that the conjoined wisdom of many is superior to that of one. Thus, although the President of the United States is the Commander in Chief of the Army, Navy and of the Militia of the several states, when called into the actual service of the United States [Article II, Section 2, clause 1 of the American Constitution], the Congress is vested with the power to declare war and to make rules for the government and regulation of land and naval forces [Article I, Section 8, clauses 11 and 14].

The Court found that a hallmark case for the issue brought before it for interpretation is that of the American President Harry Truman who, in the midst of a nationwide strike in 1952, ordered the seizure of the steel mills to help prosecute the war in Korea. The steel companies took the matter to court, where the Justice Department presented the argument that the judiciary had no power to constrain the President, as only two checks operated on the President: impeachment and the ballot box. In response, District Judge David A. Pine wrote an opinion that repudiated this theory. In holding Truman’s seizure of the steel mills to be unconstitutional, Pine admitted that a nationwide strike could do extensive damage to the country, but believed that a strike “would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power” [Youngstown Sheet & Tube Co. v. Sawyer, 103 F.Supp. 569, 577 (D.D.C. 1952)].

The Court also noted that this case was also brought before the US Supreme Court [Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)]. In a 6-3 ruling, the Supreme Court declared the seizure unconstitutional. Justice Black, who wrote for the majority, noted that the measure in question cannot be justified based on the constitutional provisions granting to the President of the United States the position of Commander in Chief  of armed forces. It could not be reasonably considered that the Commander in Chief  would have the discretion to undertake seizures of property to settle labour disputes. This task lies with the legislator. Moreover, the competence of the president to take care that the laws are executed is opposed to the idea that he could legislate.

The Court noted that the American example is eloquent for the constitutional system of the Republic of Moldova. Both in the American Constitution and in the Constitution of the Republic of Moldova, the head of state is nominated as the Commander in Chief  of armed forces. Neither prior to the constitutional amendment of 2000, nor afterwards, the political system of the Republic of Moldova was or became a presidential one. Since the competences of the President in military matters are limited in a presidential system, the rationale of this choice – i.e. shared powers and collective judgment, to the detriment of that of one person – are all the more applicable to a parliamentary system, in such a sensitive area, which requires a wide array of responsibilities.

Then, the Court emphasized that under Article 6 of the Constitution (“Separation and cooperation of powers”), the legislative, executive and judicial powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution. Given that when deciding on the admissibility of the application, the Court noted that this case poses a problem of exercising competences in national defence by the President of the Republic of Moldova and those of the Parliament, it undertook an analysis of the constitutional status of each of these authorities.

The Court observed that Article 60 para. (1) of the Constitution provides that the Parliament is the supreme representative authority of the people and the sole legislative authority of the State. The Court mentioned that passing, interpreting and ensuring the enforcement of the laws in the entire territory of the country are core powers of the Parliament.

The Court found that the President of the Republic of Moldova is not granted a margin of discretion in legislative matters. No constitutional provision referred to in the application may serve as a basis for the claims advance by the applicant. Moreover, although the Constitution confers upon the President of the Republic of Moldova the power to have legislative initiatives and the power to decline, only once, the promulgation of the draft law passed by the Parliament (see Articles 73 and 93 para. (2) of the Constitution on these competences), this may not be construed as having an absolute nature, in that the will of the President would have to take precedence.

At the same time, the Court observed that under the Constitution of the Republic of Moldova, the President represents a unipersonal State authority. The President thus could not be positioned in a hierarchy of State authorities. He cannot is not called to compete with other authorities. In light of the Constitution, there is no competition between the President and the Parliament in adopting national defence policies. The sole one adopting, ultimately, such policies is the Parliament. The President of the Republic may also propose, eventually, certain measures, however without him having the last word.

The Court observed that in matters of defence, the Constitution vested the President of the Republic of Moldova with the power of a Commander in Chief  of armed forces. In its Judgment no. 15b of 16 December 1996, the Court recognised a wide array a competences of the President of the Republic of Moldova in matters of national defence. In the same judgment it pointed out, however, that the scope of application of the competences in military matters of the President of the Republic of Moldova shall be circumscribed to paras. (2), (3) and (4) of Article 87 of the Constitution. The Court noted that this implies that the President of the Republic of Moldova is competent to declare a general mobilisation or in part only with a prior approval by the Parliament, to undertake the necessary steps aiming at repulsing an aggression or declare war, only if acknowledging these decisions before the Parliament without any delay.

Therefore, the Court concluded that paragraph (1) of Article 87 of the Constitution does not serve as an argument that would support the idea that the President of the Republic of Moldova is granted the exclusive competence in national defence matters. The position of Commander in Chief  of armed forces must be seen in the context of all constitutional regulations, not isolated. The principle of coherence of the legal system imposes such an approach.

Hence, the Court held that Articles 1 para. (3), 6, 7, 66, 87 and 134 para. (3) of the Constitution grant to the Parliament an exclusive lawmaking competence in national defence matters. The Parliament adopts policy documents on matters of national defence within the limits provided by the Constitution and relevant laws. The Court also noted that the President of the Republic of Moldova has the competence to undertake in national security and defence related matters only the measures allowed by the Constitution and by the laws.

In other words, the Court observed that Article 87 of the Constitution does not impose to the President of the Republic of Moldova a liability in terms of general defence capabilities of the State. The liability of the Head of State may only be a personal one, when related to fulfilling his duties in this field (e.g. criminal liability for committing offences against State security). The provision of Article 87 does not contain any text that would regulate a strict liability in military matters. This conclusion does not preclude though the possibility of adopting a law by the Parliament, in the spirit of the Constitution, which would provide for such a liability for the President of the Republic of Moldova.

Having regard to the provided interpretations and given that the sole critique of unconstitutionality brought forward by the applicant against the procedure on adopting the Parliament’s Decision no. 134 of 19 July 2018 is that it was registered with Parliament’s secretariat as a draft law, but within the legislator’s proceedings it became a Parliament Decision, the Court noted the following. The Law no. 100 of 22 December 2017 on normative acts provides for the procedure on adopting and promoting normative acts. Article 24 para. (5) of the law provides for the legal basis on adopting policy documents. Under this provision, policy documents shall be approved by a Government decision, and in cases where the implementation of this policy implies the involvement of certain administrative authorities which are not under the Government, such policy documents shall be approved by the Parliament. The Court noted that the case in question also falls into the ambit of this provision. Moreover, following the rationale of Articles 66 let. a and 74 of the Constitution, it results that the sole authority to decide on the type of act to be adopted is the Parliament.

The Court’s conclusions
Considering the foregoing, the Court decided that within the meaning of Articles 1 para. (3), 6, 7, 87 and 134 para. (3) of the Constitution:

a) In matters of national defence, the Parliament enjoys exclusive legislative competence.

b) The Parliament adopts policy documents on national defence within the limits provided by the Constitution and the laws in this field. Adopting the national defence strategy falls into the ambit of competences conferred upon the Parliament.

c) Article 87 of the Constitution does not provide for a liability to be incurred by the President of the Republic of Moldova as regards State’s defence capabilities. This does not preclude the possibility of adopting a law, in the spirit of the Constitution, which would provide for such a liability for the President of the Republic of Moldova.

The Court declared constitutional the procedure of adopting the Parliament’s Decision no. 134 of 19 July 2018 on approving the National Defence Strategy and the Action Plan implementing the National Defence Strategy for 2018-2022 years.

This judgment is final, it cannot be subject to any appeal, enters into force upon the date of adoption and is published in the Official Journal of the Republic of Moldova.