On 19 January 2016, the Constitutional Court adopted a decision of inadmissibility on the constitutional review of three decrees of the President of the Republic of Moldova on designating Mr Ion Păduraru as candidate for the office of PM (1), on the repeal of this decree (2) and on designating Mr Pavel Filip as candidate for the office of PM (3) (Complaint no.1/2016 - in Romanian).

Circumstances of the case

The case originated in the complaint lodged with the Constitutional Court on 18 January 2016 by MPs Igor Dodon, Vladimir Țurcan, Corneliu Furculiţă, Vlad Bătrîncea, and Adrian Lebedinschi.

The authors requested the annulment of the Presidential decrees on designating a candidate for the office of PM, on the grounds that may be summarized as follows:

1) The Parliament did not cast vote for the investiture/rejection of Sturza Government, there not having been fulfilled quorum requirements at Parliament's session, so that this attempt of installing a Government was not exhausted;

2) The parliamentary majority was not formed in line with relevant regulations;

3) President's decrees are unconstitutional since they were issued within the last 15 days of the 3 months term;

4) The President applied double standards of integrity in designating/declining to designate the candidates for the office of PM;

5) There were not held consultations with PSRM (Socialist Party of the Republic of Moldova).

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

Following a preliminary examination of the complaint, in terms of admissibility, the Court held that the competence conferred upon under Article 135.1.a of the Constitution, implies establishing the correlation between contested norms/acts and the text of the Constitution, taking into account the supremacy principle of the latter.

The Court held that essentially, in this case, the complaint concerns procedural violations of the Constitution and Parliament Regulations.

1) The Parliament did not cast vote for the investiture/rejection of Sturza Government, there not having been fulfilled quorum requirements at Parliament's session, so that this attempt of setting up a Government was not exhausted;

The Court noted that the failure to fulfil the quorum requirement for the parliamentary session of 4 January 2016 was precisely due to the deliberate blocking of this parliamentary session by PSRM, being exclusively the result of its actions, due to the absence of its MPs.

According to its caselaw, the Court held that the term of 15 days, provided for by the Constitution for requesting an investiture vote of the Parliament, sets the time limit aimed at carrying out all the procedures of a Government formation. Thus, irrespective of whether the Parliament voted expressly or not, the attempt of forming the Government is considered to be exhausted at the expiry of this term.

Therefore, within the procedures of forming a Government, the failure of the Parliament to cast a vote of confidence within the period of 15 days from the moment of designation, regardless of the reasons for which it was not cast, means that the attempt of forming a Government has failed.

Thus, in accordance with his constitutional powers, the President was expected to designate repeatedly a candidate for the office of PM.

2) The parliamentary majority was not formed in line with relevant regulations;

The Court recalled that by Constitutional Court's Judgment no. 32 of 29 December 2015, it delivered an Address requesting the Parliament to regulate clearly the concept of formalising a parliamentary majority supporting a particular candidate for the office of PM and the procedure of notifying the President in this regard. From the content of the Judgment and the issued Address it is absolutely evident that in this case there is a different situation than that covered by Parliament's Regulations, which relates directly to Parliament's configuration immediately following the elections and not to subsequent reshufflements.

In the context of procedural flaws alleged by the authors of the complaint when forming a parliamentary majority, the Court recalled that it held in its caselaw that under Article 68 of the Constitution, any imperative mandate is void. The non-imperative nature of the mandate includes the MP's right to vote independently from the faction/party s/he is part of. Thus, the form of association of MPs supporting a government may exceed the frame of the factions formed immediately following the elections.

3) President's decrees are unconstitutional since they were issued within the last 15 days of the 3 months term (with a one-day delay);

According to its caselaw, the Court reiterates that the 15 days term is a limitative one for the candidate in respect of requesting the investiture vote, and not for President, in respect of designating the candidate. This does not preclude the right of the candidate to request the investiture vote prior to the expiry of the 15 days term.

Thus, the failure of the President to comply with this term shall not affect the validity of the Decree designating the candidate, all the more that this case concerns the issue of reducing the term with only one day and does not affect the substance of the procedures of investiture of the new Government. In this context, the Court held that the term of 14 days is sufficient for the candidate to request a vote of investiture of the Government.

The Court also found that the designation of Mr Filip as candidate was carried out with his consent, which implies the implicit consent of this one-day limitation.

In its caselaw, the Court held that under Article 98 of the Constitution, within the term of 3 months, including the last 15 days, the President and Parliament are not limited in respect of the number of attempts to form a government.

4) The President applied double standards of integrity in designating/declining to designate the candidates for the office of PM;

In essence, the authors of the complaint alleged that Mr Pavel Filip was a member of a Government dismissed by a motion of no confidence on allegations of corruption.

In this context, the Court recalls that it previously ruled on a similar claim by the Decision of Inadmissibility No. 10 of 18 November 2014. Thus, the Court highlighted the distinction to be made between the personal responsibility borne by a PM for the Government s/he leads in respect of other members of the Government.

Thus, according to its caselaw, the Court held that dismissal by a motion of no confidence does not entail the automatic impossibility of the members of the dismissed Government to hold an office of public dignity.

5) There were not held consultations with PSRM.

The Court held that in this respect, the complaint is repetitive since the Court previously ruled on this issue by Judgment no. 32 of 29 December 2015.

Furthermore, given the fact that PSRM faction has publicly announced its refusal to join consultations with the President of the Republic of Moldova in view of setting up a Government, in this aspect the complaint is abusive.

Conclusions

In respect of the alleged violations invoked in this case, the Court found that the authors did not reason out the effect of constitutional norms on the challenged acts.

At the same time, the Court also noted that the lodged complaint is abusive, since PSRM faction declined to participate in the formation of the Government and, precisely due to the absence of members of PSRM faction, it contributed to the failure to fulfil a quorum in Parliament at the session on which it grounds its claims and to the failed attempt of investing the Sturza Government.

For these reasons, the Court concluded that the complaint is manifestly unfounded, drafted abusively, with a faulty line of reasoning, these rendering the complaint inadmissible.

Decision of the Court

Stemming from the above reasoning, in accordance with Articles 26.1 of the Law on the Constitutional Court, Articles 61.3 and 64 of the Code of Constitutional Jurisdiction, the Constitutional Court rejected the complaint as being conspicuously unfounded.

The Judgment of the Constitutional Court is final, cannot be appealed, enters into force upon adoption and is published in the Official Journal.

The original version in Romanian language of this press-release is available here.