For The Interpretation Of Article 85 Paragraph 4. (1) And Paragraph 1. (4) Of The Constitution Of The Republic Of Moldova (Dissolving Parliament) (Referral No. 44B/2015)

Original Language Title: pentru interpretarea articolului 85 alin. (1) și alin. (4) din Constituţia Republicii Moldova (dizolvarea Parlamentului) (Sesizarea nr. 44b/2015)

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    On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mrs. Sadik Munteanu, Registrar, considering the appeal filed on 6 November 2015 and recorded at the same time, examining the appeal referred to in closed session, taking into account the laws and proceedings, Acting in a closed plenary session following the judgment, a decision: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 6 November 2015, under articles 135 para. (1) (a). (b)) of the Constitution, 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction, by the deputies of the Parliament, Mr. Igor Dodon, Carter and Adrian Ladani Fork, for the interpretation of article 85 paragraph 4. (1) and paragraph 1. (4) of the Constitution of the Republic of Moldova.
2. The authors have requested the referral to the Constitutional Court as constitutional provisions through the interpretation of paragraph 1 of article 85. (1) and paragraph 1. (4) explain: "1. What are the consequences of the expiry of 3 months in 2006 which, for various reasons, there is a new Government formed by Parliament, but that falls during the period of the last 6 months of the term of Office of the President of the Republic of Moldova?
2. In particular, which would be the procedure and deadline for the dissolution of Parliament in this case? "
3. By decision of the Constitutional Court of 17 November 2015 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court requested the opinion of the Parliament and the President of the Republic of Moldova.


In FACT 5. Article 85 (1) of the Constitution regulates the circumstances in which Moldovan President dissolves Parliament, namely in the case of impossibility of the formation of the Government or of a situation for 3 months.
6. in accordance with paragraph (2), Parliament can be dissolved if a vote of confidence to form a new Government within 45 days after the first request, and only after rejection of at least two requests of investiture.
7. At the same time, (4) lays down that Parliament may not be dissolved during the last six months of the Presidential term of Office, except as provided for in article 78 (5), nor during the State of emergency, siege or war.


PERTINENT LEGISLATION 8. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1Statul "(1) the Republic of Moldova is a sovereign, independent, unitary and indivisible State.
[…]
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "


Article 6Separaţia and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 77Preşedintele the Republic of Moldova, the Chief of State "(1) the President is the head of State.
(2) the President of the Republic of Moldova represents the State and is the guarantor of national independence, sovereignty, unity and territorial integrity of the country. "


Article 78Alegerea of the President "(1) the President of the Republic of Moldova is elected by the Parliament by secret ballot.
(2) can be elected President of the Republic of Moldova citizens with voting rights who has 40 years old, resided or resides permanently in the territory of the Republic of Moldova for no less than 10 years and speaks the State language and (3) the candidate obtaining the vote of three-fifths of the votes cast. If no candidate obtains the required number of votes, a second ballot shall be held for the top-two runoff candidates in order of the number of votes obtained in the first round.
(4) if in the second ballot no candidate will meet the required number of votes, repeat elections shall be held.
(5) If after repeat elections the President of the Republic of Moldova is not elected, the incumbent President shall dissolve the Parliament and establish the date of new parliamentary elections.
(6) the procedure for electing the President of the Republic of Moldova is determined by an organic law. "


Article 85Dizolvarea Parliament ' (1) in the case of the inability of the Government or a training situation for three months, the President, after consulting parliamentary factions, may dissolve Parliament.
(2) the Parliament may be dissolved if a vote of confidence to form a new Government within 45 days after the first request, and only after rejection of at least two requests of investiture.
(3) In the course of a year, Parliament can be dissolved only once.
(4) Parliament may not be dissolved during the last six months of the Presidential term of Office, except as provided for in article 78 (5), nor during the State of emergency, siege or war. "


Article 103Încetarea of the mandate "(1) the Government shall exercise its mandate up to the date of validation of the elections for a new Parliament.
(2) the Government, if the expression of no confidence vote by the Parliament, resignation of the Prime Minister or in the conditions of paragraph (1), meets only management functions public affairs until the oath of the members of the new Government. "
9. The relevant provisions of law No. 64 of 31 May 1990 on Government (Official Gazette, 2002, no. 131-133, art. 101) are as follows: Article 71Atribuţiile acting Government (resigning), "If the expression of no confidence vote by Parliament, in the event of resignation of the Prime Minister, or in the case of the election of a new Parliament, the incumbent Government (resigning) meets management functions only public affairs until the oath of the members of the new Government.
The main tasks of the Government (finance): 1) ensures the transposition into the life of the law, regardless of the scope of these;
2) he is driving and control over the activity of specialized agencies;
3) carries out programmes of economic and social development of the country;
4) ensure security of the citizens of his State, to fulfil the functions of the administration of public affairs;
5) undertake any activity of leadership and management on questions relating to the whole society.
In order to accomplish the duties laid down in this article, the Government: 1) approve resolutions and provisions for enforcement of laws;
[…]”
10. The relevant provisions of law No. 1234 of 22 September 2000 on the procedure for electing the President of the Republic of Moldova (Official Gazette, 2000, nr. 139-142, art. 996) are as follows: Article 2Organizarea of the election for the Office of President of the Republic of Moldova "(1) the Organization of elections for the post of President of the Republic of Moldova includes: setting the election date, the creation of a Special Commission of conducting elections for the Office of President of the Republic of Moldova First, the conduct of the ordinary election tour in the special public meeting of the Parliament.
(2) elections of the President of the Republic of Moldova shall be held not later than 45 days prior to the date of expiry of the term of Office of the President-in-Office.
(3) if the vacant President of Moldova has been following the resignation, dismissal, definitive inability of allocating powers or death, elections for a new President of the Republic of Moldova shall be organized within two months from the date when it was vacant.
(4) the date of the election for the position of President of the Republic of Moldova shall be established by decision of the Parliament.
[…]
(6) where the Special Commission did not register within the time limits laid down no candidate for President of the Republic of Moldova, it is considered that the elections cannot take place, and the judgment of Parliament regarding the date of the election shall be repealed. On the proposal of the parliamentary factions, Parliament shall establish, not later than 30 days, a new election of the President of the ordinary. "


Article 6Alegerile for the ordinary position of President of the Republic of Moldova "[...]
(4) If the Presidential election were attended by less than three-fifths of the votes cast, it is considered that the elections were not held, and the Parliament will establish, within 30 days, a new election date.
[…]”


Repeated article 10Alegerile "(1) repeat elections shall be held not later than 30 days after the last ordinary elections in which there has been elected President of the Republic of Moldova, under the present law.
(2) If after repeat elections the President of the Republic of Moldova is not elected, the incumbent President shall dissolve the Parliament and establish the date for elections to the new Parliament.

(3) In the course of a year, Parliament can be dissolved only once. Following the dissolution of Parliament will take place within a reasonable time after the expiration of one year from the date of dissolution. "


In LAW 11. From the contents of the referral, the Court observes that it is aimed at essentially the dissolution of Parliament the possibility last 6 months of the term of Office of the President of the Republic of Moldova, where it was not vested in the Government.
12. Thus, the appeal relates to a set of elements and principles with constitutional value interconexe as well as the rule of law and the limits of the exercise of power in the State.


A. ADMISSIBILITY Of 13. In accordance with its decision of November 17, 2015, the Court noted that, under article 135 paragraph 1. (1) (a). (b)) of the Constitution, article 4 para. (1) (a). b) of the law on the Constitutional Court and to article 4 para. (1) (a). (b) constitutional jurisdiction) of the Code concerning the interpretation of the Constitution, to refer to the competence of the Constitutional Court.
14. Articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the Code empowers the constitutional jurisdiction of Parliament in Parliament with the right to refer the matter to the Constitutional Court.
15. the Court finds that the subject of the referral, subject to interpretation by the Constitutional Court, includes (1) and (4) of article 85 of the Constitution, establishing the conditions for the dissolution of Parliament.
16. the Court note that paragraphs 2 and 3 of article 85. (1) and paragraphs 1 and 2. (2) of the Constitution has been interpreted previously by decision No. 30 of October 1, 2013, during which it was established, after the expiry of the maximum period to which the President is obliged to dissolve Parliament if it has not been given a vote of confidence to the Government.
17. Furthermore, the Court observes that the possibility of the dissolution of the Parliament in the last 6 months of the term of Office of the President, which is not vested in the Government's constitutional term of three months, has not previously been the object of interpretation by the Constitutional Court.
18. the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
19. In its jurisprudence, the Court found that the purpose of any constitutional interpretation of the rules is to ensure the unity and correct perception of their content and meaning, and to resolve legal and political differences arising in connection with the levying and assessing Law Rules Supreme.
20. Therefore, the Court will examine further referral to the Fund, taking into account previous jurisprudence and constitutional principles which functions in full balance to democratic institutions.


B. FUND CASE 1. The arguments of the authors of the referral. The authors have cited the constitutional norm of referral from article 85 paragraph 4. (1) of the Constitution, according to which in case of impossibility of the formation of the Government or of a situation for three months, the President, after consulting parliamentary factions, may dissolve Parliament. However, according to paragraph 4 of the same constitutional provision, the Parliament cannot be dissolved during the last six months of the term of Office of the President, except as stipulated in article 78 paragraph 1. (5) of the Constitution, which provides for the dissolution of Parliament by the President-in-Office if the President's repeated election was not elected.
22. In the opinion of the authors of the constitutional prohibition of referral, the dissolution of Parliament in the last 6 months of the term of Office of the President would help to maintain for a long period of governmental crisis arising in the event that Parliament does not învestește a pre-established by the Government in the Constitution.
23. In this context, in order to avoid a possible situations mentioned supra, referral should be made to the interpretation of constitutional rules cited, in terms of the relationship between the Executive and the legislative power, as well as the obligation of the President to ensure their legality.
2. Arguments of the authorities. In the opinion of the President of the Republic of Moldova by, constitutional provision in article 85 paragraph 4. (4), relating to the dissolution of Parliament in the last 6 months of the term of Office of the President, are not to be interpreted since the Court has previously interpreted under paragraphs (1) and (2) of the same article by the decision No. 30 of October 1, 2013.
25. Parliament did not present its point of view on the subject-matter of the referral.
3. Assessment of the Court 3.1. General principles 26. The court notice that, according to article 2 of the Constitution, sovereignty belongs to the people of the Republic of Moldova, who shall exercise it directly and through its representative bodies in the ways provided.
27. In Judgement No. 16 of 29 March 2001, the Court has noted the following: "[S] uveranitatea national means, under the Constitution, the power of absolute and perpetual people, which it exercises through representative bodies of State power, whose titular sovereign. In this regard, national sovereignty is inalienable, whereas what is transmitted is only representative bodies and the exercise thereof. [...]”
28. the Court indicates that, in order to realize mutual cooperation and control in the process of exercising national sovereignty, the Constitution of the Republic of Moldova establishes certain relations between Parliament (legislative power), the head of State and Government (the Executive), reports what is manifested in mutual interaction, skills set and strictly limited by constitutional rules (articles 72, 78, 79, 80, 81, 84, 85, 86, 87, 89, 93, 95, 98 , 104, 105, 106 of the Constitution).
29. These constitutional solutions constitute an expression of the principle laid down in article 6 of the Constitution concerning the separation and cooperation of powers, i.e. the contrabalanței whereby the deciding a dispute between constitutional powers regarding the powers.
30. With reference to the constitutional principle of the separation of powers and cooperation, in its judgement No. 23 of 9 November 2011 on the interpretation of article 116 paragraph 1. (4) of the Constitution, the Court said: "19. The principle of institutional balance, known today as "checks and balances" (rough translation from the English language meaning "system of brakes and contrabalanţe"), is the basis of democracy and assume their powers and control balance each other, so that the State powers to have roughly the same weight, i.e. it should be balanced, in order to limit each other, thus avoiding that State power should be used abusively.
20. This system of brakes and contrabalanţe represents the condition sine qua non of modern democracy, preventing the omnipotence of the legislature, Executive or judiciarului. "
31. In order to comply with strict principles and system of values in the basic law, the importance of functional and interpretation reveals in conjunction to constitutional rules, which involves perceiving the Constitution in terms of ensuring full respect for State institutions funcţionalității.
3.2. Application of the principles in this question 3.2.1. Maintain balance by providing institutional continuity of the exercise of executive power in the State, 32. The Court noted that Parliament is the Supreme representative of the institution, which, in the exercise of its mandate, is at the service of the people.
33. Under art. 63 of the Constitution, the Parliament is elected for a four year term. At the same time, constitutional provisions allowed the dissolution of Parliament before the expiry of the period referred to, namely in the case of impossibility of the formation of the Government or of a situation for 3 months (article 85 of the Constitution) and in case of grounding procedures electing the President (article 78 of the Constitution).
34. the Court noted that the sanction applicable constitutional Parliament-dissolution-it is acceptable according to the procedures stipulated in the Constitution, in situations when the representative of the supreme legislative body and no longer can exercise his powers and thus can no longer express the will of the voters. For these reasons, in connection with the time of dysfunction, by dissolving the Parliament and holding early elections, voters have the opportunity to settle about conflict between constitutional authorities.
35. At the same time, the prerogative of the President to dissolve Parliament constitutes a constitutional guarantee which allows resolution of the institutional crisis, and unblock.
36. In Judgement No. 30 of October 1, 2013, the Court has pointed out: ' 72. [You] with due regard to the position of President of the guarantor of national independence, sovereignty, unity and territorial integrity of the country (article 77 of the Constitution), the dissolution of Parliament, the rationale requirement established in article 78 paragraph 1. (5), to be applied mutandis mutandis to situations referred to in article 85 of the Constitution.
73. the Court noted that, as a whole, article 85 of the balancing of powers mechanism, mechanism that applies for the purpose of avoiding or overcoming the institutional crisis or a conflict between legislative and executive power. "

37. In the context of its previous jurisprudence, the Court recalled that after the expiry of three months after the President of Moldova is obliged to dissolve Parliament if he failed to form a new Government.
38. The discretionary right of the President to dismiss or not to dismiss the Parliament if it passed a vote of confidence for the refusal to form a Government intervenes in circumstances para. (2) of article 9. 85 of the Constitution, i.e. after the expiry of 45 days after the first request and rejection of at least two requests of investiture until expiry of the period of 3 months.
39. Thus, the discretionary right of the President to dissolve the Parliament or not; 85 paragraph 4. (2) turns into an obligation imposed by the will of the legislator constituent at art. 85 paragraph 4. (1) 40. The Court noted that the constitutional rules are designed to ensure the perpetuation of the exercise of power by the State institutions, as well as provisional and interim statements, designed to avoid creating a vacuum of power, must be removed as soon as possible.
41. Therefore, the court notice that by the provisions contained in paragraphs 2 and 3 of article 85. (1) and paragraph 1. (2) of the Constitution follows the collapse of a period of political and institutional crisis and ensuring the functionality of the State's constitutional organs, and by assigning the right of the President to dissolve Parliament to avoid hindering the work of the State's power. 42. In the light of the above, note that Court prohibition on dissolution of the Parliament in the last 6 months of the term of Office of the President of the Republic of Moldova, at para. (4) article. 85 of the Constitution, must operate alongside the other constitutional provisions of the same article, as a mechanism for balancing of powers, and not in order to generate or perpetuate a crisis or conflict among institutional powers.
43. the Court notes that a possible postponement of dissolution of Parliament until the expiry of the mandate of the President of the Republic, considering that its dissolution shall become definite already after the expiry of three months, has no rationale and is not likely to contribute to solving the institutional crisis and unlocking. On the contrary, because it can lead to maintain for a period of more than six months of an interim Government, which has extremely limited capacity for action, postponing Parliament dissolution, given that it no longer has the right to form a Government Plenipotentiary, leading to irrational and extension to the institutional crisis worsening. For these reasons, a government finance with an interim Prime Minister may not persist over time, longer than the period prescribed by the Constitution.
44. Thus the Court reveals that the imperative requirement of the dissolution of Parliament after 3 months derives from the fact that, unlike the pursuit of interim President of the country, where the Acting President shall exercise the same powers as the President of the interim Government's mandate is restricted to functions related to the administration of public affairs ".
45. In this context, the Court retains the provisions of article 103 para. (2) of the Constitution, according to which a government finance management functions it performs only public affairs, up to the oath of the members of the new Government.
46. With reference to the competence of the Government resigning just to manage public affairs, in its judgement No. 7 of 18 may 2013, the Court stated: "112. Administration of Public Affairs refers to the decisions of the current Government, which are necessary for the operation of the continuous public service. This task boils down to the fact that, pending the completion of negotiations for the formation of a new Government team, to avoid a total lack of executive power, which is one operative and vital to the needs of society.
[…]
114. The Government administering public affairs may not take on major policy initiatives a fortiori in respect to issues which have caused difficulties prior to his dismissal or finally led to this resignation. Are excluded, in particular, decisions which could later hire durable political line of the future Government. […]
115. One of the resigning Government action limiting rationales is that a government resigning is no longer likely to be sanctioned by Parliament. It is obvious that a government finance cannot be overturned. Therefore, to grant a government finance such major powers would represent a danger to the parlamentarism.
     […]
118. Granting excessive powers of a government finance constitutes a manifest danger for the exercise of democracy.
119. The reduction of the Government's functions in the administration of public affairs, finance, which it can use freely in order to ensure the continuity of public services, is at the same time, a limit that he requires diminutio, capitis-violation of which can lead to a judicial sanction. This limitation of the powers of the Government resigning is a general principle of law. "
47. the Court noted that the work of the legislative power may be exercised only under conditions corresponding to the existence of an executive power with full powers, including the right of legislative initiative.
48. the Court points out that the continuance of an interim Government, by its definition, is contrary to the spirit of the Constitution and pose a threat to parliamentary democracy.
49. Thus the court notice that, to achieve a balance between two requirements referred to in paragraph 1. (1) and (4) of article 85 of the Constitution, the solution can be identified only through the balance of the value of the interests pursued by these requirements, which are often contradictory.
50. In this context, the Court shall act that the principle of continuity and functionality of the fundamental institutions of the State must prevail and to determine the priority of implementation of those constitutional provisions which exclude political crises or institutional.
51. The constitutional provision available to balance the dissolution of Parliament in case of failure of the formation of Government within 3 months (para. (1) article 1. 85 of the Constitution) that prohibits the dissolution of Parliament in the last 6 months of the President's term of Office (para. (4) art. 85 of the Constitution), and starting from the interpretation of the Constitutional Court shall act rules that override the provision allows you to restore full functionality of the Government.
52. Therefore, after the expiry of three months in which there was formed a Government, the impending dissolution of Parliament, and the Parliament is no longer entitled to other attempts of forming an Executive.
3.2.2. The rationale of the constitutional rule relating to the restriction of the Parliament's dissolution in the last 6 months of the term of Office of the President of the Republic of Moldova 53. To determine the exact meaning of the regulations contained in the paragraphs 2 and 3 of article 85. (4), the Court will determine the will of the legislator constituent in relation to the amendments that have been made to article 78 of the Constitution.
54. Thus, as a result of constitutional amendments that have been made by the law No. 1115-XIV of 5 July 2000, the President of the Republic of Moldova is elected by the Parliament by secret ballot (art. 78 para. (1) of the Constitution). Moreover, under law No. 1115-XIV of 5 July 2000 amended paragraph 1. (5) of article 78 of the Constitution, establishing the obligation of the President to dissolve Parliament if after repeat elections the President of the Republic of Moldova was not elected.
55. In relation to amendments, article 30. 85 paragraph 4. (4) of the Constitution was included the provision that recognizes the dissolution of Parliament in the last 6 months of the presidential term of Office under the conditions of paragraph 1. (5) of article 78 of the Constitution. Other exceptions that would allow for the dissolution of Parliament in the last 6 months of the term of Office of the President have not been provided for in the constitutional norm in article 85 (Dissolving Parliament).
56. In this context, the Court notes that the ban on the dissolution of Parliament in the last 6 months of the term of Office of the President is reminiscent of the period in which the President was elected by citizens. Such a prohibition was justified by the need to avoid the situation in which the President would dissolve Parliament on the eve of the presidential election and would be later in the campaign for a new term of Office, all the while without a functional Government and Parliament and with full powers.
57. In addition, the court notice that, at the time, the possibility of the President to dissolve the Parliament on the eve of the presidential election would have led to a situation in which the parliamentary majority the President willing to close the Organization of parliamentary elections and presidential at the same time to be able to involve the President in the party's campaign that it would be supported to undertake such further governance and by the respective parliamentary majority in particular in cases where the President enjoys the confidence of the electorate.

58. Thus, the rationale for this restriction arises from the need to preserve the continuity of State structures in the period of the electoral campaign, as well as the need to avoid overlapping of election campaigns for election to Parliament with the election of the President, where both electoral exercises taking place through the same way, namely by direct and universal suffrage, freely expressed.
59. the Court points out that in the framework of the parliamentary Republic, given that both the President and the Government are authorities that constitute the emanation of the Parliament, the President's term of Office may not block the resolution of institutional crisis by dissolving Parliament, the supreme legislative and representative body however cannot exercise his powers.
60. Therefore, the Court retained that prohibition of the dissolution of the Parliament in the last 6 months of the term of Office of the President, if the Government's formation, stranding is characteristic in which arrangements the Chief is elected by universal suffrage and parliamentary regimes is not fit for the President is elected by Parliament. This prohibition has no functional justification in the event that the President is elected by Parliament, because these votes clearly cannot overlap.
61. Furthermore, the Court recalled that in either case-dissolution of Parliament after the collapse of the Government has been deadlocked for three months after the expiration of the presidential term of Office or President will continue to wield his mandate until the election of the new Parliament of the next head of State.
62. Thus the Court finds that in any of these cases to be observed the same order of procedures, and the dissolution of Parliament after the expiry of the last 6 months for the exercise of the mandate of the President, is only a deferral of a fact which will occur with certainty and favor only delaying further the process of formation of a new Government and restore full executive powers.
Conclusions 63. In light of the above, keep in mind that the time limitation of the dissolution of Parliament at para. (4) of article 85 is not applicable in a situation where Parliament has not appointed a Government within three months.
64. For these reasons, Parliament will be dissolved in case of failure of the formation of the Government within 3 months even if this period is over the last 6 months of the term of Office of the President of the Republic of Moldova elected by Parliament.
Under article 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 60, 61, 62 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. For the purposes of paragraphs 1 and 2 of article 85. (1) and paragraph 1. (4) and article 103 para. (2) of the Constitution, the Government formation within 3 months leads to the dissolution of Parliament even though this period is over the last 6 months of the term of Office of the President of the Republic of Moldova.
2. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.