The Initiative To Revise The Articles 78, 85 (4) And 89 Of The Constitution (Notification No. 8C / 2016)

Original Language Title: asupra iniţiativei de revizuire a articolelor 78, 85 alineatul (4) şi 89 din Constituţia Republicii Moldova (Sesizarea nr. 8c/2016)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=364110

On behalf of the Republic
Constitutional Court, sitting as the composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor
Panţiru, Mr. Victor
POPA, judges
when Mr Eugene Osipov, Registrar,
Considering the complaint filed on February 17, 2016
and registered on the same date
examining the notification mentioned in the council chamber
Given the documents in the file, adopted the following opinion
:
1
PROCEDURE. The case originated notification is submitted to the Constitutional Court on 17 February 2016 a group of 37 deputies, pursuant to Article 135 para. (1) c) and art. 141 of the Constitution, art. 4 para. (1) of the Law on the Constitutional Court and art. 2 para. (1) Article 38. (2) art. 63 of the Constitutional Jurisdiction Code, which requires approval of the initiative to revise the Articles 78, 85 (4) and 89 of the Constitution.
2. MPs signatories of the initiative to revise the Constitution, belonging to factions of the Liberal Democratic Party and the Socialist Party of Moldova are:
- the Liberal Democratic Party of Moldova Vladimir Filat, Gregory Cobzac Tudor Deliu Iurie Tap Cyril Lucinschi, Liliana Palihovici, Angel Agache, Vadim Pistrinciuc Octavian Grama Victor Rosca Gheorghe Mocanu, Maria Ciobanu, Valeriu Ghileţchi;
- The Socialist Party of Moldova Igor Dodon, Vasile Bolea, Andrei Neguţa, Vladimir Turcan, Zinaida Greceanii, Elena Hrenova Cornelius Fork, Vlad Batrincea Bogda Ţîrdea, Eduard Smirnov, Gennady Mitriuc Vladimir Odnostalco, Fedor Gagauz Oleg Lipskii, Alla Dolinţă, Labuneţ Anatolie Radu Mudreac, Marina Radvan, Grigore Novac, Adrian Lebedinschi Victor Sorocean Alexander Nesterovschi Oleg Savva, Vladimir Golovatiuc.
March. The legislative proposal amending the Constitution is set forth in the following wording:
"single - the Constitution adopted on 29 July 1994 (Official Gazette of the Republic of Moldova, 1994, no. 1), as amended and supplemented, amended as follows:
1) Article 78 reads as follows:

"Article 78Alegerea President

(1) The president of Moldova is elected by universal, equal, direct, secret and freely expressed.
(2) For the President of the Republic of Moldova can apply Moldovan citizens who have reached the age of 40, has been living permanently in Moldova not less than 10 years and speaks the state language. The procedure for electing the President of Moldova is established by organic law.
(3) shall be declared elected candidate who wins a majority of voters who participated in the elections.
(4) If none of the candidates obtains this majority, it holds second round between the two candidates who obtained the greatest number of votes in the first round. It declared elected the candidate who obtained the highest number of valid votes cast. "
2) In Article 85 (4) the words "except as provided in Article 78 (5), and" shall be excluded;
3) Article 89 shall read as follows:

"Article 89Demiterea

(1) In case of committing grave acts infringing upon constitutional provisions, Moldovan President can be dismissed by republican referendum.
(2) Proposal for removal from office is initiated by at least one third of deputies.
(3) Committing acts specified in paragraph (1) shall be ascertained by the Constitutional Court or the Supreme Court.
(4) Upon a finding by the Constitutional Court or the Supreme Court of the facts indicated in paragraph (1), within 30 days organize a republican referendum for dismissal of the President. "
RELEVANT LAWS | || 4. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1 Moldova State


"(3) The Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed."

Article 2Suveranitatea and state power

"(1) National sovereignty belongs to the people of Moldova, who exercise it directly and through its representative bodies in the ways provided for in the Constitution.

(2) No private individual, no part of the people, no social group, no political party or other public organization may exercise state power in its own name. Usurpation of state power constitutes the gravest crime against the people. "

Article 7Constituţia the Supreme Law

"The Constitution is the supreme law. No law or other legal act that contravenes the Constitution has no legal power. "
Article 72Categorii laws


"(1) Parliament passes constitutional, organic and ordinary laws.
(2) Constitutional laws are aimed at revising the Constitution.
[...] "

Article 135Atribuţiile [Constitutional Court]

"(1) The Constitutional Court:
[...]
c) on initiatives to revise the Constitution;
[...] "
Article 141Iniţiativa review


"(1) Revision of the Constitution may be initiated by:
[...]
b) of at least one third of MPs;
[...]
(2) Constitutional draft laws will be submitted to Parliament together with the Constitutional Court, adopted by a vote of at least 4 judges. "
Article 142Limitele review


"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by referendum by a majority of voters included in the electoral lists.
(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
Article 143Legea on amending the Constitution


"(1) Parliament has the right to pass a law on amending the Constitution at least 6 months after the initiative was submitted. Law shall be passed by a two-thirds majority vote.
(2) If, after the submission of the initiative on amending the Constitution, Parliament has not passed the appropriate constitutional law one year, the proposal shall be considered void. "

THE LAW 5. From the content of the notification, the Court observes that it essentially aims possibility of revising the Constitution in respect of the manner Presidential election and dismissal.
June. In essence, the bill proposes:
(1) Restoring the election of the President by universal, equal, direct and secret suffrage. It proposes replacing the current regulation, which provides that the President of Moldova is elected by a vote of three-fifths of the elected deputies.
(2) Returning to the institution dismissal from office of Moldovan president by universal, equal, direct and secret suffrage. Thus, Presidential dismissal will occur in case of having committed grave acts infringing upon constitutional provisions, established by the Constitutional Court or the Supreme Court. Proposal for removal from office of President of the Republic of Moldova, initiated by at least one third of the deputies and supported by most MPs, will be followed by a mandatory referendum, through which Moldovan citizens will vote on the impeachment of the President. The proposal aims at replacing the current regulation, which provides that The President may be dismissed by the vote of two thirds of the elected deputies.
July. Constitutional Court's jurisdiction to resolve the present case is referred to the provisions of Article 135 para. (1) c) of the Constitution, according to which the Constitutional Court decides on initiatives to revise the Constitution.
I. General on amending the Constitution
August. Constitution is the fundamental legal framework in terms of content regulation, but also the supreme legal, as legally, for the organization and functioning of the state and society, it is the source of all legal regulations.
September. Opinion No. 1 of September 22, 2014 on the initiative to revise the Articles 78, 85, 89, 91 and 135 of the Constitution by republican referendum, the Constitutional Court held:

"13. The Constitution is the fundamental law governing political and legal form of organization of the state. The essence of a Constitution is its stability over time, it must be drawn to represent a reference for political and legal life of a human community for a longer period of time.
14. To this end, the fundamental laws are inserted in various technical ways to protect the stability of the Constitution by providing a certain degree of rigidity of the Constitution. This is a basic feature of all written constitutions (unlike ordinary laws), which contain provisions that enable own review. In almost all Member revision of the Constitution it is more difficult than legislation common and usually requires either a qualified majority parliamentary multiple decisions, a calendar and every particular time or a combination of these factors [see report on constitutional (CDL-AD (2010) 001 of 19 January 2010), the European Commission for Democracy through Law, hereinafter - the Venice Commission].
[...]
21. Protection of the Constitution of Moldova expresses both within the review provided for in Article 142 of the Constitution and the rigidity of procedures provided for the adoption of the review. "
10. Regarding protection guarantees of the Moldovan Constitution, in Case no. 57 of 3 November 1999 on the interpretation of art. 75, art. 141 para. (2) and 143 of the Constitution, the Constitutional Court stated that:
"[I] n its quality of writing and systematic establishment of normative supreme law in the legal system, the Constitution is relatively rigid, meaning she admits the revision, but only for an initiative aimed at revising technical default (141), limits the review (Article 142) and its procedure (Article 143). "
11. At the same time, the Court notes that according to art. 141 par. (2) of the Constitution, constitutional draft laws will be submitted to Parliament together with the Constitutional Court.
12. In this context, the Court points out that one of the fundamental tasks of a constitutional court consists in securing the normative order born of the Constitution. In this respect, the Constitutional Court opinions on initiatives to amend the Constitution is designed to protect the fundamental values ​​of the Constitution of abusive practices by political actors, social or institutional. Therefore, after the approval by the Constitutional Court, are not allowed intervention in the text of the draft law amending the Constitution and ignoring or overcoming them lead to the invalidity of such alteration.
II. Specific rules revision of the Constitution 1. The initiative to revise the Constitution
13. Under Article 141 of the Constitution:
"Revision of the Constitution may be initiated by:
a) of at least 200 000 Moldovan citizens with voting rights. The citizens who initiate the revision of the Constitution must come from at least half of the administrative units of the two, and each of them must be at least 20,000 signatures in support of this initiative;
B) of at least one third of MPs;
C) Government. "
14. According to art. 60 para. (2) of the Constitution, the Moldovan parliament consists of 101 MPs.
15. In this case, the legislative proposal to revise the Constitution is signed by a number of 37 MPs, ie for more than a third of the deputies. The right of legislative initiative to revise the Constitution has been exercised in compliance with article 141 para. (1) b) of the Constitution.
2. 16
limits constitutional revision. Regarding the limits of revising Article 142 of the Constitution provides:
"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by their referendum by a majority of voters included in the electoral lists.
(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
17. Text cited conditions governing constitutional review intrinsic initiative [para. (1) and (2) of article 142] and extrinsic its constitutionality [para. (3) 142].

A) The constitutionality of extrinsic (time limits)
18. In terms of constitutionality extrinsic (time limits), the Court notes that the text legislature par 142. (3) of the Basic Law prohibits the revision of the Constitution during a state of emergency, siege and war. Similarly, under Art. 63 para. (3) of the Constitution, Parliament may revise the Constitution during the term of office extends until the meeting structure of the new.
19. Also, according to art. 143 par. (1) of the Constitution, Parliament has the right to pass a law on amending the Constitution at least 6 months after the initiative was submitted.
B) The constitutionality of intrinsic (material limits)
20. To rule on the constitutionality of intrinsic (material limits) requires analysis of proposed changes in relation to the provisions of art. 142 par. (1) and paragraph. (2) of the Constitution, to determine whether the scope of the review is the sovereignty, independence and unity of the state, as well as those regarding the permanent neutrality of the state and whether proposed changes have resulted in the suppression of fundamental rights and freedoms of citizens or their guarantees.
21. The Court will examine whether the proposed constitutional amendments do not conflict with other constitutional provisions and if they ensure their applicability as a whole without excluding each other.
- With regard to the election of President
22. The Court notes that, according to the draft revision of Article 78 of the Constitution, the Moldovan president is to be elected and dismissed by the people through universal, equal, direct, secret and freely expressed. It is proposed to be elected candidate who wins a majority of voters who participated in the elections. If none of the candidates obtains this majority, it holds second round between the two candidates who obtained the greatest number of votes in the first round, and declared candidate who obtained the highest number of votes validly cast
23. In this context, the Court notes that previously ruled on the direct election of the President by the people of approval no. 2 of 4 May 2010 on the initiative for a revision of Article 78 of the Constitution, Opinion No. 3 of 6 July 2010 on the initiative for a revision of Article 78 of the Constitution through a constitutional referendum, Opinion no. 1 of September 22, 2014 on the initiative to revise the Articles 78, 85, 89, 91 and 135 of the Constitution by referendum Republican, Opinion no. 1 of July 24, 2015 on the initiative of revising Article 78 (3) of the Constitution and Opinion no. 2 of November 10, 2015 on civic initiative to revise the Articles 60, 70, 78 and 89 of the Constitution by referendum Republican.
24. In all these cases the Court concluded that projects initiated not exceed revise the Constitution required by art. 142 para. (2) it is in accordance with the requirements regarding the sovereignty, independence and unity of the state and not likely to lead to the suppression of fundamental rights and freedoms of citizens or their guarantees.
25. At the same time, the Court reiterates the findings of Opinion no. 2 of November 10, 2015 on civic initiative to revise the Articles 60, 70, 78 and 89 of the Constitution, which states:
"38. [...] Review initiated constitutional matter must ensure the unity and balance between competing standards and those related to the institution of the Presidency and its relations with the Parliament and the Government.
39. [...] A draft revision of the settlor must aim not only how to choose and dismiss the President, but also to answer some key issues, including: to make a clear choice for a system of government; to clarify the powers of the President, respectively, of the Prime Minister and Parliament; to introduce, among the founding principles of the constitutional system of the Republic, the principle of mutual trust and sincere cooperation between the state powers provided by the Constitution. "
- The way to dismiss the President

26. By paragraph 3 of the proposed revision seeks to amend Article 89 of the Constitution, meaning a return to the practice of dismissing the President by referendum. Thus, Moldovan President can be dismissed if committed grave acts that violate the Constitution. Dismissal of Moldovan President will be initiated by at least one third of deputies and will be followed by a referendum through which citizens will decide on the matter of dismissal.
27. The Court reiterates that the rule on the suspension from office for "serious acts of violation of the Constitution" is in itself objectionable because it creates confusion and ambiguity, both on the content of such "violations" of the Constitution and the effects of such findings.
28. The Court found that this provision enshrines confusing legal responsibility - namely the criminal - and political responsibility of the President.
29. At the same time, the Court notes that according to the draft, serious acts that violate the Constitution to be established by the Constitutional Court or the Supreme Court.
30. The Court notes that the proposed provisions in Article 89 of the Constitution are open to criticism and essentially devoid of legal logic.
31. The Court notes that by this time the authors have failed to distinguish between relevant bodies to ascertain the violations committed. Thus, identification remains uncertain authority which shall be competent to establish the facts severe President that violate the Constitution because the proposed rule operates by "the Constitutional Court or the Supreme Court."
32. The Court draws attention to the fact that the authors of the project, according to art. 134 of the Constitution, the sole body of constitutional jurisdiction in Moldova is the Constitutional Court. Constitutional Court guarantees the supremacy of the Constitution provides for the principle of separation of state power into legislative, executive and judicial power and ensures accountability to the citizen and the state of the citizen to the state.
33. Also, according to art. 135 par. (1) f) of the Constitution, the Constitutional Court finds circumstances justifying dismissal of the President of the Republic of Moldova.
34. Meanwhile, according to art. 115 of the Constitution, justice shall be administered by the Supreme Court, the Courts of Appeal and judges.
35. Thus, the project is to make a clear distinction between the authority with powers of constitutional jurisdiction and judicial courts of common law, or the latter does not have the power to detect cases of violation of the Supreme Law.
36. The Court also notes that the wording of Article 89 project authors have disregarded the editorial Article 81 para. (3) of the Constitution, which states:
"(3) Parliament may decide to indict the President of Moldova, the vote of at least two thirds of the elected deputies, if they commit a crime. Jurisdiction of the Supreme Court of Justice, under the law. The President is removed from office on the date of the final sentence. "
37. The Court notes that unlike editorial project proposed in Article 89, Article 81 para. (3) of the Constitution provides a clear and limited jurisdiction court for a higher common law (Supreme Court) intervention in the case of an offense by the President.
38. The Court also notes that the rules proposed in Article 89 were not correlated with the content of Article 92 of the Constitution, which provides:
"If the person acting as President of the Republic of Moldova has committed grave acts infringing upon constitutional provisions, apply Article 89 (1) and Article 91. '
39. Thus, failing to amend Article 92 of the Constitution, which refers to Article 89 para. (1), the new procedure for dismissal of the President of the referendum will create confusion regarding the applicability of this procedure to a President of Parliament or the Prime Minister exercising and interim President.
40. From the above, the Court finds that the draft Constitutional amendment introduced itself is objectionable because it creates confusion and ambiguities.

41. The Court notes that the writing project, the authors failed to take into account all existing constitutional rules so as attested inconsistencies are likely to generate new systemic bottlenecks and affect the proper functioning of state institutions. Moreover, as regards the competent authorities to establish the facts President that violate the Constitution, the proposed rules are contrary to the constitutional regulations in force.
42. Accordingly, the Court found that this change is unconstitutional because it violates the limits of review under Article 142 of the Constitution.
For these reasons, under Article 135 para. (1) c), article 141 para. (2) of the Constitution, article 26 para. (1) of the Law on Constitutional Court art .61 par. (1) and article 63 a) of the Code of constitutional constitutional Court adopts the following

OPINION:

1. Initiative to revise the Articles 78, 85 para. (4) and 89 of the Constitution, from 37 MPs, is presented by the person authorized and, in this regard complies with the provisions of Article 141 para. (1) b) of the Constitution.
2. Unconstitutionality of the change to article 89 of the Constitution regarding the award of the Supreme Court of jurisdiction for failure to commit to the President of Moldova grave acts infringing upon constitutional provisions.
March. Legislative proposal on the revision of the Constitution goes beyond amending the Constitution required under Article 142 para. (2) of the Constitution and can not be submitted to the Parliament.
4. This opinion is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase