Implementation of the electoral system in early elections

On 7 May 2020, the Constitutional Court ruled on the interpretation of the provisions of Article 72 para. (3) a) of the Constitution (Judgement no. 11 of 07.05.2020).

The choice of an electoral system is an important decision for any democracy and should not only be adopted as a political compromise by political groups, but also through broad consensus achieved through a process of public consultation. It should result from an open, inclusive and transparent process that involves a wide array of election stakeholders, including both parliamentary and non-parliamentary parties, as well as civil society representatives. Building consensus on the choice of an electoral system contributes to the acceptance, legitimacy and stability of the governing system (see the Joint Opinion of the Venice Commission and OSCE CDL-AD(2017)012 of 15, 16-17 June 2017 on the electoral system for the election of the Parliament of the Republic of Moldova, § 36).

According to paragraph 12 of the Joint Opinion of the Venice Commission and the Council for Democratic Elections of OSCE CDL-AD(2017)012 of 15, 16-17 June 2017 (the electoral system for the election of the Parliament), if any amendments are made to fundamental elements of electoral law, including the electoral system proper, they should take place well in advance of the next elections and at any rate at the latest one year beforehand. Should early elections be called after the introduction of changes to an electoral system, this system should be applied only at least one year after the adoption of the amendments.

The Court noted that it should reevaluate its previous solution of Judgement no. 11 of 26 April 2019 regarding the impossibility of the eventual implementation of another electoral system in the early parliamentary elections than the one applied in the ordinary parliamentary elections.

The Court considered that in order to ensure the stability of the electoral legislation and to avoid its frequent amendment, the rule should be observed that, in the event that Parliament adopts a new electoral system, it can only be implemented if the legislative amendment has been published in the Official Gazette of the Republic of Moldova at least one year before the date of the elections, regardless of their type.

In the sense of Article 72 para. (3) a) of the Constitution and taking into account the good international practices in electoral matters, the time frame for the implementation and application of the rules in electoral matters cannot depend on the type of elections - parliamentary, presidential or local, ordinary or early, general or partial. The legal provisions on electoral matters must be clear and foreseeable, and there must be a broad social consensus regarding them. Changes in this area must take place early enough to be successfully implemented in the electoral process, in order to avoid violations of the right to vote and the right to stand for election.

In the sense of Article 72 para. (3) a) of the Constitution, taking into account the exclusive power of the Parliament regarding the regulation, by organic law, of the way of organizing and conducting elections and taking into account the good international practices in electoral matters, the amendments of the fundamental elements of electoral law become applicable only if they were published in the Official Gazette of the Republic of Moldova at least one year before the election date.

The reasoning of Article 72 para. (3) a) of the Constitution does not prohibit the conduct of early parliamentary elections according to the rules of another electoral system than the one applied to ordinary parliamentary elections, if the rule on publishing the norms on the applicable electoral system in the Official Gazette of the Republic of Moldova at least one year before the election date is observed.