President of the Constitutional Court of the Republic of Lithuania: „It is not permitted to adopt any such amendments to the Constitution that would lead to constitutional deadlocks“

An interview with Dainius Žalimas, President of the Constitutional Court of the Republic of Lithuania centres on one of the recent judgments of the Constitutional Court of the Republic of Moldova, which has generated much attention and debate and was handed down for the first time to declare the unconstitutionality of the amendments to the Constitution concerning the procedure for electing the President of the state. The interview includes questions on the role of the Constitutional Court of Moldova in ensuring the development of democracy in the Republic of Moldova, as well as on the established cooperative ties and the perspectives of cooperation between the Constitutional Courts of Lithuania and Moldova.

It would be worthwhile to open this interview by asking about one of the most recent judgments of the Constitutional Court of the Republic of Moldova, which drew a great deal of discussion. It was for the first time that the Constitutional Court of Moldova delivered a judgment declaring the amendments to the Constitution regarding the procedure for electing the President of the state to have been in conflict with the Constitution. Thus, is the Constitutional Court vested with such a competence and how, in reality, can this judgment contribute to ensuring political stability in Moldova? 

Indeed, the constitutional courts of most European states have the competence to assess the constitutionality of amendments to the Constitution. Like all other legal acts, laws on amending the Constitution must be adopted in accordance with the procedure and rules prescribed in the Constitution. Therefore, amendments to the Constitution must be an object of judicial constitutional review. There may be no legal acts whose constitutionality could not be reviewed by the Constitutional Court. If amendments to the Constitution were exempt from judicial constitutional review, we would face the danger that the Constitution might be amended, to say the least, in any way whatsoever: without regard to any procedure or limits; no one would be able to control this process. There may be no vacuum of constitutional control and no room for the arbitrariness of political power. For this reason, I believe that criticism that has been now and then directed against the Constitutional Court of the Republic of Moldova over its judgment given on the unconstitutionality of the amendments to the Constitution is unfounded or is voiced as a result of failing to perceive the requirements of the supremacy of the Constitution. On the contrary, this judgment of the Constitutional Court of the Republic of Moldova handed down regarding the direct elections of the President of the state should be considered a particularly positive moment in the history of Moldovan constitutionalism. The Constitutional Court assumed its responsibility to guarantee the supremacy of the Constitution and its implementation and, at the same time, paved the way for stability in the country by preventing political crises.

It is indeed the first time that the Constitutional Court of the Republic of Moldova has ruled, in view of the procedure of their adoption, amendments to the Constitution itself to be contrary to the Constitution. Although not a frequent practice, this is not an isolated case around the world; Moldova is not the sole country where constitutional amendments have been found to be unconstitutional.

As far as the content of the judgment regarding direct presidential elections is concerned, it is necessary to agree that, as noted by the Constitutional Court of the Republic of Moldova, certain flaws were found not only in the procedure regulating the adoption of amendments. There may be no legal regulation that would lead to a constitutional deadlock and, ultimately, to a crisis of constitutional democracy. No such amendments to the Constitution may be introduced that would violate the integrity of the norms of the Constitution or disturb the functioning of state institutions. Meanwhile, the constitutional amendment in question, which is now already declared to have been contrary to the Constitution, more than once caused political crises, as the state had for a rather long time to exist without the Head of State or with an acting Head of State, since the Parliament was simply unable to elect the President due to the election procedure consolidated in the Constitution. Therefore, this judgment of the Constitutional Court of the Republic of Moldova is undoubtedly conducive to ensuring stability in the State of Moldova; it will definitely preclude such situations from happening in the future where the Head of State is for a long time not elected and the Parliament, consequently, must be dissolved, as it had happened on more than one occasion. I believe that this amendment has paved the way for the capability of Moldova as a state to function stably and to fulfil its tasks, instead of being mired in political disagreements. The stability of the state is particularly important in view of the objectives of European integration pursued by Moldova; the constitutional order can definitely benefit more if long-term political disturbances and tensions are avoided.

Without doubt, every state is free to decide on the system of electing the head of state; however, in Moldova, this system seemed as if deliberately to have been designed in such a manner that caused the state to continue to live in the conditions of political tension for as long as possible. In a country that does not have the head of state, the entire system of state institutions is unable to function properly and effectively. Furthermore, where preconditions are created for a country to have no head of state over a long period of time and, thus, in a certain sense, to hold the entire system of state institutions in the conditions of instability, such a country, undoubtedly, also becomes more vulnerable to external factors. Today we are well aware of the countries, such as Russia, that are interested that Moldova would not gain stability and that its integration into the European Union would not take place.

How it can be ensured that no such amendments are adopted that would create preconditions for constitutional stalemates or conflicts?

There are two means. The first of them entails responsible political decisions. Political authorities must be able to unite in the name of the stability of the country, reach an agreement on the geopolitical direction to be followed by the state, and make the appropriate decisions. This requires a sufficiently high political culture, precluding the emergence of the already mentioned constitutional stalemates and political crises. However, if different political forces are unable to act responsibly and fail to reach an agreement on the issues critical to the stability of the country, there is the other, a legal, means: judicial review of constitutional amendments. Constitutional amendments must be enacted in accordance with the procedure provided for in the Constitution of the Republic of Moldova. At this point, the best words should once again be said with regard to the Constitutional Court of the Republic of Moldova: by adopting its judgment for the first time recognising the unconstitutionality of constitutional amendments, as well as by assuming the responsibility to verify the constitutionality of constitutional amendments, the Constitutional Court of the Republic of Moldova stood beside the Constitutional Courts of Germany, the Czech Republic, and Austria and other constitutional courts of European democratic states, which defend the Constitution and the state against attempts to alter the elements of the constitutional order in a manner contrary to the Constitution.

The Constitution is an integral act; no amendments to the Constitution may create any such constitutional regulation under which a certain provision of the Constitution would deny or contradict another constitutional provision. No amendments to the Constitution may violate the harmony of the provisions of the Constitution or the harmony of the values consolidated in such provisions. It is not permitted to adopt any such amendments that would create chaos in the constitutional system or would pose a threat to independence, democracy, or innate human rights. For example, the Constitutional Court of the Republic of Lithuania has interpreted that the Constitution does not permit any such constitutional amendments if they deny at least one of the core constitutional values lying at the foundations of the State of Lithuania: the independence of the state, democracy, or the innate nature of human rights or freedoms. Thus, the judicial constitutional review of amendments to the Constitution is essential for ensuring that amendments to the Constitution are adopted in accordance with the Constitution, as well as that the core constitutional values are respected and not denied.

In general, what role is assumed by the Constitutional Court of the Republic of Moldova in ensuring democratic processes and the development of democracy in the state?

In this regard, I can say that the Constitutional Court of the Republic of Moldova is one of the most advanced, stable, and efficiently functioning state institutions of Moldova. Obviously, probably not all are pleased with this, but this institution has properly and consistently conducted judicial constitutional review. In as much as I am familiar with the activity of the Constitutional Court of Moldova, also based on the assessment of foreign experts, it is a European-level institution, which follows the highest European constitutional review standards. In my view, the Constitutional Court of the Republic of Moldova performs an especially significant role in the development of democracy in the country, by contributing to the consolidation of European democratic values and to the ensuring of compliance with the principles of the rule of law. It is worth reminding that the Moldovan course of rapprochement with Europe was considerably reinforced after the Constitutional Court of the Republic of Moldova adopted the judgment on the constitutionality of the Association Agreement with the European Union and its Member States. By this judgment, it recognised that European integration is an inseparable part of the constitutional identity of the State of Moldova, as well as that any other adverse geopolitical orientation is unconstitutional in itself. The declaration of the independence of the state marked a turning point in the reorientation of the state towards Europe and its detachment from the post-Soviet area; any alignment with the organisations that would draw Moldova to the former Soviet area would be contrary to the Constitution of the State of Moldova. In my view, this is one of the crucial judgments adopted by the Constitutional Court of the Republic of Moldova in connection with the development of democracy and human rights. Clearly, there are far more equally important judgments, as, for instance, judgments given on issues concerning the prevention of corruption, the official language, as well as the already discussed judgment on the modality of electing the President of the Republic of Moldova. All of them bear testimony to the fact that the Constitutional Court of the Republic of Moldova is one of the most effectively functioning state institutions, considerably contributing to ensuring that the national political system would be as stable as possible, as well as that the legal system would be reformed in a manner consistent with the integration of the State of Moldova into the European Union, i.e. in compliance with the European standards of democracy, the rule of law, and human rights.

The Constitutional Courts of Moldova and Lithuania have been intensively cooperating in recent years. In your view, what are the benefits of this cooperation not only for the Constitutional Courts, but also for the states?

As a member of the European Union and NATO, Lithuania seeks to develop an international order based on law and justice. One of the constitutional objectives of the foreign policy pursued by the state is to support and assist other states working towards integration into the European Union. Thus, by sharing knowledge and experience with the Constitutional Court of the Republic of Moldova, as well as with colleagues from other EU's Eastern Partnership countries, we contribute to implementing the international commitments undertaken by the State of Lithuania in the area of the administration of justice, to implementing Lithuania's foreign policy and the European Union's common foreign policy as a whole and to enhancing security, as well as to promoting universal values of democratic states and European legal principles.

We enjoy one of the closest relationships with the Constitutional Court of the Republic of Moldova, and our cooperation brings mutual benefits. We have actively and successfully shared the knowledge and experience gained in deciding constitutional justice cases. Though at different moments in time, nevertheless, we have faced very similar problems and challenges to constitutional justice. The before-mentioned judgment of the Constitutional Court of Moldova on the Association Agreement with the European Union and its Member States, declaring the geopolitical orientation of the state, is similar in interpretation to the rulings of the Constitutional Court of the Republic of Lithuania. The judgment of the Constitutional Court of the Republic of Moldova on direct presidential elections also, to some extent, reflects one ruling of the Constitutional Court of the Republic of Lithuania, recognising that the amendment to the Constitution regarding the powers of the central bank of Lithuania was in conflict with the Constitution. On more than one occasion, the Constitutional Court of the Republic of Lithuania has similarly looked for inspiration in judgments passed by the Moldovan colleagues. In this respect, I would like to mention at least one of them. This is the judgement of the Constitutional Court of the Republic of Moldova on the official language, which addressed, among other things, the relationship between the Constitution and the Declaration of Independence. In its judgment, the Constitutional Court stated that the Declaration of Independence is a fundamental constitutional legal act of the state to be complied with by any Constitution. We took this judgment into account when we considered a case regarding the organisation of referendums and amendments to the Constitution; in this case, we held that two fundamental values consolidated in the Act of Independence of Lithuania of 16 February 1918-the independence of the state and democracy-may not be abolished even by referendum. No one may deny the provisions of the Constitution consolidating these fundamental constitutional values, since doing so would amount to the denial of the essence of the Constitution itself and the destruction of the state and the sovereignty of the Nation.

There are also other forms of the established successful cooperation. The Constitutional Court of Lithuania is participating in an international project aimed at strengthening the institutional capacities and improving the activity of the Constitutional Court of the Republic of Moldova. The Constitutional Court of the Republic of Lithuania is to implement the project financed under the Development Cooperation and Democracy Promotion Programme of the Ministry of Foreign Affairs of Lithuania. The purpose of this project is to strengthen the role of the Constitutional Courts of Moldova, Georgia, and Ukraine in ensuring the implementation and protection of the principles of the rule of law.

Last year, on the initiative of the Constitutional Courts of Moldova and Lithuania, the Association of Constitutional Justice of the Countries of the Baltic and Black Sea Regions was established; the Constitutional Courts of Georgia and Moldova also belong to it. The purpose of the Association is to contribute to the strengthening of democracy, the rule of law, and respect for human rights in the Eastern Partnership countries. The Association will ensure firm and consistent support for Eastern partners that have chosen European integration in their processes of creating a state under the rule of law. Let me remind you that, last year, all the members of the Association contributed to and supported the initiative launched by the colleagues from the Constitutional Court of Ukraine to condemn the Constitutional Court of the Russian Federation for its role in committing aggression against Ukraine, i.e. for its role in the annexation of Crimea, and demonstrated solidarity in defending international legal principles.

Recently, there has been increasing talk of the pressure exerted on constitutional courts and the attempts of politicians to influence their work. Even in such a state as Poland, there is much discussion today about the constitutional crisis and the defiance of the rule of law. Are there any signs of this problem in Moldova?

I would like to start with the fact that the independence of the judiciary is the primary guarantee of justice; judges must be independent from both politicians and society groups, and even from being dictated by the crowd. In my view, the Constitutional Court of the Republic of Moldova meets the highest standards of independence. It is, nevertheless, difficult to talk on this subject, since, not only in countries aspiring to EU membership, e.g. in Georgia, but also in EU Member States, e.g. in Poland, as you have mentioned, constitutional courts are confronted with attempts to interfere in their work or to ignore their decisions.

Actually, it seems there is one problem in Moldova, which, in my opinion, in no way helps to increase the independence and efficiency of the Constitutional Court. There are five justices serving in the Constitutional Court of Moldova, and the sixth justice has not yet been appointed. But this is not, of course, a challenge to the independence of the activity of the Constitutional Court to the extent that has been faced by the Constitutional Courts of Ukraine and Georgia. The Constitutional Court of Moldova has successfully resisted the attempts to exert influence on it. And such attempts have actually been made. Let us remember the intentions to establish the right for the Parliament to express no confidence in the justices of the Constitutional Court. The Constitutional Court swiftly recognised these amendments as unconstitutional and no conflict occurred. It is obvious that political no confidence in the justices of the Constitutional Court may not be expressed. Thus, at the time when faced with the challenge to the independence of the Constitutional Court, Moldova responded to it appropriately and dealt with it in a European and legal manner. I would like to wish my colleagues to continue to have the courage and strength to consistently defend the constitutional values and strengthen the Republic of Moldova as an independent and democratic state. Finally, I would add that the Constitutional Court of the Republic of Moldova could be an encouraging example not only to the courts of other EU's Eastern Partnership countries, but also to the courts of some other EU countries. 

Source: Moldovan newspaper Ziarul de Gardă. 

Click here for the Romanian version of this interview.