Finding of constitutionality on the interim office of the Speaker of the Parliament

(Complaint No. 12/2013)

On 21 May 2013, Constitutional Court ruled on the constitutionality of a number of provisions on the interim office of the Speaker of the Parliament (Complaint No. 12/2013).

Circumstances of the case

At the origin of the case is the complained lodged with the Constitutional Court on 29 April 2013 by the MPs Mihai Ghimpu, Valeriu Munteanu, Boris Vieru and Corina Fusu, on the constitutionality review of Article 3 of Parliament Decision No. 96 of 25 April 2013 on the removal from office of the Speaker of the Parliament and of the Law No. 101 of 26 April 2013 on amending the Article 14 of Parliament’s Regulations, adopted by Law No. 797-XIII of 2 April 1996.

The authors of the complaint claimed, particularly, that by granting with the Article 3 of the Parliament Decision No. 96 of 25 April 2013 the right to the Deputy-Speaker of the Parliament to perform the duties of the Speaker of the law-making body lacking certain legal regulations, as well as subsequently the signing on 26 April 2013 of the Law No. 101 on amending Article 14 of Parliament’s Regulations, is contrary to Article 2 and Article 64 of the Constitution of the Republic of Moldova.

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

Mr Alexandru TĂNASE, President, 

Mr Aurel BĂIEŞU,

Mr Victor POPA,

Mr Petru RAILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties, the Court noted that in line with Article 64 of the Constitution, the structure, organisation and functioning of the Parliament are established by the Regulations. Thus, the Parliament enjoys autonomy in establishing juridical norms governing its organisation and functioning.

In this context, the Court held that the parliamentary regulatory autonomy cannot be absolutised, as the supremacy of the Constitution represents a general binding principle, including for the law-making authority, which cannot pass legislative acts and approve regulations on parliamentary procedure contrary to principles and dispositions of the Constitution.

The Court noted that the interim office is clearly provided by the Constitution only for the President and for the PM of the Republic of Moldova (Articles 91 and 101), but which does not operate with the notion of the “interim office of the Speaker of the Parliament”, and it neither contains provisions regarding the other bodies of the high legislative authority.

In this context, the Court held that in issues and aspects related to the internal organisation and functioning of the Parliament, where the Constitution does not provide for, the Parliament enjoys the latitude to autonomously decide, autonomy which is exercised by the will of the majority of its members expressed by their vote. In this regard, the Parliament enjoys the exclusive competence to establish provisions on the duties of its leading bodies, to decide on the way they are applied; and the failure to respect certain regulatory provisions can be found and solved exclusively through parliamentary procedures.

The Court held that, although on the date of Speaker’s removal (25 April 2013), Parliament’s Regulations did not contain provisions on Deputy-Speaker’s possibility to perform Speaker’s duties in the case of office vacancy, including the duty to sign the adopted laws, by the virtue of regulatory autonomy of the Parliament and related to the analogy of the law, the Deputy-Speaker of the Parliament was able to exercise this competence, vested in this regard with powers by the deputies majority vote, even there was lacking a clear legal provision in Parliament’s Regulations.

Subsequently, the Court concluded that passing by the Parliament of provisions that establish the interim office of the President of the Parliament, in itself, it is not contrary to constitutional provisions.

At the same time, the Court noted that Parliament’s Regulations do not exhaustively provide for the competences of the person exercising the interim office of the President of the Parliament.

In this context, the Court held that the statute of the ad interim President of the Parliament is different from that of the titular President of the Parliament. The Court ascertained that the ad interim President of the Parliament has a provisional statute, by instituting the interim there being sought the assurance of continuity in performing the functions of the Parliament. The person exercising the interim office of the President of the Parliament does not follow the procedure of appointment, inherent to that of a titular President of the Parliament (secret vote) and neither enjoys the benefits of guarantees of holding the office (removal by a secret vote of 2/3 of the deputies). Therefore, constitutional dispositions laid down exclude equating the mandate of the Speaker of the Parliament with its interim office, by which there is assured the continuity of exercising the functions of the Parliament, but which does not set the beginning of a full mandate of the Speaker of the Parliament.

In this context, the Court held that the person holding the interim office of the Speaker of the Parliament can only assume the functional competences of the titular on ordering the activity of the Parliament, provided for by Parliament’s Regulations, including signing the adopted laws, summoning and leading the sittings of the Parliament.

The Court noted that the exclusive competences of the Speaker of the Parliament established by the Constitution are intuit personae and can be neither delegated nor assumed and exercised by the person holding the interim office. Subsequently, the person holding the interim office of the Speaker of the Parliament cannot call for the election of the Deputy-Speakers of the Parliament (Art. 64, para. (3) of the Constitution), cannot be devolved the interim office of the President of the Republic of Moldova (Art. 91 of the Constitution), cannot submit the proposal on the appointment or the removal of the General Prosecutor (Art. 125 of the Constitution) and cannot submit the proposal on the appointment or the removal of the President of the Court of Accounts (Art. 133 of the Constitution).

The Court held that the Supreme Law (Art. 74) only establishes conditions on the modality of passing the laws, meaning the necessary number of votes by categories of laws (constitutional, organic and ordinary) and procedure of signing is not covered by the applicability of constitutional provisions, being a strictly administrative and parliamentary procedure.

Moreover, in the part related to the signing of the laws, the Court noted that it does not have a decision making value, but one of confirming that the content of the signed act corresponds to the text adopted by the deputies, this being a technical competence, so that it cannot by its nature generate the obstruction of Parliament’s functionality in its capacity of supreme deliberative, collegial organ of the state.

The Court reiterated that the reasoning on disposing the interim office resides in passing over the created situation, as a result of the impossibility of performing the duties by the titular of the mandate and in avoiding perturbations in the activity of this institution.

No provision of Parliament’s Regulations clearly provides for the term of exercising the interim office of the Speaker of the Parliament.

The Court reiterated that the provisions and the spirit of the Constitution seek to assure the perpetuance in exercising the power by state institutions, established in line with the provisions of the Constitution. And provisional situations, as the interim office, aimed at avoiding instituting a power vacuum and at assuring the organisation of mechanisms on forming functional plenipotentiary institutions, shall be eliminated the soonest.

Having regard to the broadening of granted competences, as well as in corroboration with the lack of imperative provisions on temporal limits, the Court reiterated the inadmissibility of permanentisation of interim situations, including the office of the Speaker of the Parliament.

In the same context, the Court noted that regardless of the circumstances determining the removal from office of the Speaker of the Parliament, MPs have the imperative obligation to subordinate themselves to the Constitution and, aiming at assuring the full functionality of state institutions, to carry out with no delay elections for the office of the titular Speaker of the Parliament, in line with the provisions of Article 64 para. (2) of the Constitution.

In assessing the reasonable term in this regard, there shall be considered the current context of the country, where both persons susceptible to ensuring the interim office of the President of the country, are being thus excluded from solving this eventually exceptional situation.

Judgment of the Court

Starting with the above reasoning, Constitutional Court found constitutional Article 3 of Parliament Decision No. 96 of 25 April 2013 on removal of the Speaker of the Parliament. It also found constitutional the Law No. 101 of 26 April 2013 on amending Article 14 of Parliament’s Regulations, adopted by the Law No. 797-XIII of 2 April 1996. The judgment of the Constitutional Court is definitive, cannot be appealed, shall enter into force upon the date of its adoption and shall be published in the Official Journal of the Republic of Moldova.