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07.07
2020

The possibility of dissolution of the Parliament in the last six months of the term of office of the President of the country and the possibility of organizing Parliamentary and Presidential elections in the same period

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[1] Judgement no. 19 of 07.07.2020 on the interpretation of Articles 2 para. (1), 38, 61 paras. (1) and (3), 78, 85 paras. (1), (2) and (4), 90 paras. (1), (2) and (4) of the Constitution

On 7 July 2020, the Court issued a judgement on the interpretation of Articles of the Constitution[1] explaining the following issues:

(1) Does the Constitution allow the dissolution of the Parliament in the last 6 months of the term of the President of the Republic? 

(2) Does the Constitution allow the dissolution of the Parliament in the last 6 months of the term of office of the President of the Republic if during this period the President resigns and the conditions for the dissolution of the Parliament are met?

(3) Does the Constitution allow for the holding of parliamentary elections and presidential elections (ordinary or early) at the same time?

(4) Does the Constitution allow the simultaneous conduct of two elections in the same period? 

(5) What is the procedure to be followed for holding early parliamentary elections and presidential elections at the same time?

I. Whether the Constitution allows the dissolution of the Parliament in the last 6 months of the term of office of the President of the Republic

The Court found that its interpretation of Judgement no. 29 of 24 November 2015 was given only for the situation in which the President of the Republic was elected by the Parliament, an interpretation which is not currently valid, because the President of the Republic is elected by the people.

The constant nature of this prohibition is also explained by the fact that in the idea of the constituent on the separation of branches of power, provided for in Article 6 of the Constitution, this separation implies that public authorities elected by the people be constituted in a way that prevents their uniformity, thus offering the solution of the temporal separation of the parliamentary and presidential electoral campaigns.

The Court noted that the Basic Law explicitly and absolutely prohibits the dissolution of Parliament in the last 6 months of the term of the President of the Republic and does not provide for exceptions to this ban.

Therefore, the dissolution of the Parliament in the last 6 months of the term of office of the President of the Republic of Moldova is prohibited under any circumstances.

II. Whether the Constitution allows the dissolution of the Parliament in the last 6 months of the term of office of the President of the Republic if during this period the President resigns and the conditions for the dissolution of the Parliament are met

The Court noted that the President of the Republic has the right to resign if he deems it necessary and that his decision is of an absolute nature, being described as a "voluntary and subjective" circumstance arising on his own initiative. The President may not be compelled to exercise his/her office against his/her will. If he/she resigns, his/her duties shall be taken over, in accordance with the provisions of Article 91 of the Constitution, by the President of Parliament or the Prime Minister.

The prohibition provided by Article 85 para. (4) of the Constitution operates regardless of whether in the last 6 months of the term of office of the President of the Republic this function is exercised by the President-elect or by the persons who constitutionally ensure the interim position during that period.

Therefore, the Constitution does not allow the dissolution of the Parliament in the last 6 months of the term of office of the President of the Republic if during this period the President resigns and the conditions for the dissolution of the Parliament are met.

III. Whether the Constitution allows for the holding of parliamentary elections and presidential elections (ordinary or snap) at the same time

The Court noted that the Constitution prohibits the creation of situations in which the structures of the state elected by the people are lacking in continuity, that the separation of powers presupposes that the public authorities elected by the people be constituted in a way that prevents their uniformity, which means banning the overlapping of election campaigns for the election of Parliament with that for the election of the President of the Republic. The Court noted that in the case of the simultaneous organization of presidential and parliamentary elections (ordinary or snap) the requirements in question would not be met.

Therefore, the Constitution does not allow parliamentary elections and presidential elections (ordinary or snap) to take place during the same period.

IV. Whether the Constitution allows the simultaneous conduct of two elections in the same period

The Court noted that the only prohibition on the simultaneous conduct of two elections concerns the status of parliamentary and presidential elections (ordinary or snap) during the same period. The latter results from Article 85 para. (4) of the Constitution, which prohibits the dissolution of Parliament in the last six months of the term of office of the President of the Republic. Regarding the holding of other elections on the same day (e.g. parliamentary and local or presidential and local), the Court noted that the Constitution does not contain provisions that would prohibit this.

Therefore, the Constitution allows the simultaneous conduct of two elections in the same period, except for the conduct of parliamentary and presidential elections (ordinary or snap).

V. On the procedure to be followed for holding early parliamentary elections and presidential elections during the same period

The Court noted that by this question the applicant addressed to the Court not because the text of the Constitution is unclear to him, but rather to obtain legal advice. The Constitution does not confer such jurisdiction on the Court. The Court therefore considered that this complaint should be rejected as inadmissible.

 
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