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President's Decree on notification constitutionality control for Republic of Moldova. 1877-VII of 21 December 2015 on the appointment of the candidate for the post of Prime Minister (Referral No. 59a/2015)
Published: 29.01.2016 in Official Gazette No. 20-24 art Nr: 2 date of entry into force: 29.12.2015 In the name 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 28 December 2015 and registered on the same date examining the appeal mentioned in open court, taking into account the laws and proceedings, Acting in plenary sitting, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 28 December 2015, under articles 135 para. (1) (a). a) and 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 in Parliament, Violeta Ivanov, Victor Mindru, Galina Balmos, Alexandr Bannicov, Boris Golovin, Deputy Anatolie Gorilla, Elena Gudumac, Corneliu Mihalache, Peter Panahi, Artur Resetnicov, Sergiu Stati, Vladimir Vitiuc, Igor Vremea and Anatolie Zagorodnîi, for the interpretation of article 98 para. (1) of the Constitution of the Republic of Moldova and on notification constitutionality control of Presidential Decree No. 1877-VII of 21 December 2015 on the appointment of the candidate for the post of Prime Minister.
2. The authors have requested the referral to the Constitutional Court that the interpretation of the provisions of article 98 para. (1) of the Constitution to explain: "1. what needs to be understood the phrase «» parliamentary factions?
2. Is a discretionary right of the President to appoint a candidate for Prime Minister regardless of the existence or inexistence of a parliamentary majorities?
3. the head of State Is obliged, in the course of consultations, the taking into account of the existence of a parliamentary majority willing to support a candidate for Prime Minister?
4. Is obliged to wear the President only consultations with the factions and parliamentary groups or with unaffiliated lawmakers? "
3. On 29 December, 2015, in accordance with article 31, paragraph 2. (3) of the code of constitutional jurisdiction, the authors of the referral (Vladimir Vitiuc, Peter Panahi, Galina Balmos, Boris Golovin, Victor Mindru) have supplemented the light and the subject of the referral, asking that the additional interpretation of the term "means" referred to in article 98, paragraph 1. (1) of the Constitution, the Constitutional Court to explain if: 5. "the President must nominate the candidacy or one of the candidates proposed by the parliamentary faction representing the majority (fractions) [the party with the largest number of seats-an indication of the author at the hearing public] in the consultations, which supposedly will be granted a vote of confidence?"
4. In this context, the authors claimed that the referral to the Decree of the President of the Republic of Moldova nr. 1877 December 21, 2015, to be issued without consultation with all parliamentary factions, with the appointment of a candidate who was not proposed by the factions be consulted, contrary to articles 6, 60, 77 (2) and 98 (1) of the Constitution.
5. By decision of the Constitutional Court of 28 December 2015 referral has been declared admissible, without prejudeca Fund case. At the same time, the Court dismissed the application for suspension of the Decree of the President of the Republic of Moldova nr. 1877-VII of 21 December 2015 on the appointment of the candidate for the post of Prime Minister, in favour of examination referral as a matter priority, ahead of the meeting of the Parliament for a vote of investiture of the Government.
6. In the preparation of the examination of the referral, the Constitutional Court has asked the opinions of Parliament and the President of the Republic of Moldova.
7. In the plenary session of the Court, the appeal was echoed by Mr. E. Răducan, representative of the authors of the referral. Parliament was represented by Mr. Ion Creanga, head of the General Secretariat of Parliament. The President of the Republic of Moldova was represented by Mr. Valentin Țîmbaliuc, Adviser for legal and institutional relations, representative of the President in dealing with Parliament and the Government, and Alexandru Ohotnicov, head of the Directorate-General of the Republic of Moldova President apparatus.
In FACT 8. By decision No. 181 of 29 October 2015, Parliament expressed no-confidence vote (vote of no confidence) to the Government of the Republic of Moldova, due it being sacked.
9. By Decree No. 1877-VII of 21 December 2015, Moldova's President appointed Mr Ion Sturza as candidate for the post of Prime Minister and authorized him to draw up the work schedule and the list of the Government, presenting them to Parliament for review.
PERTINENT LEGISLATION 10. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1Statul "[...] (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 2Suveranitatea and State power "(1) national sovereignty belongs to the people of the Republic of Moldova, who shall exercise it directly and through its representative bodies in the forms laid down in the Constitution.
(2) no individual, no part of any social group, political party or other public party may exercise State power in their own name. The usurpation of State power constitutes the gravest crime against the people. "
Article 5Democraţia and political pluralism "(1) Democracy in the Republic of Moldova is exercised under conditions of political pluralism, which is incompatible with dictatorship or totalitarianism."
Article 7Constituţia, "Constitution Supreme Law of the Republic of Moldova is the Supreme law. No law and no legal act that violates the Constitution has no legal power. "
Article 60Parlamentul, the Supreme representative and legislative "(1) Parliament is the Supreme representative body of the people of the Republic of Moldova and the sole authority of the laws of the State.
(2) Parliament consists of 101 members. "
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."
Article 98Învestitura "(1) after consulting parliamentary factions, the President of the Republic of Moldova designates a candidate for the post of Prime Minister.
(3) the work schedule and the list of the Government debating upon sitting in Parliament. This trust of the Government by a majority vote of the elected deputies. […]”
11. The relevant provisions of the regulation, the Moldovan Parliament adopted the law No. 797-XIII of 2 April 1996 (reprinted in the Official Gazette, 2007, no. 50, art. 237), are as follows: Article 146Desemnarea of the candidate for the post of Prime Minister "(1) after consultation with the parliamentary majority, the President of the Republic of Moldova designates a candidate for the post of Prime Minister. […]”
In LAW 12. From the contents of the referral, the Court observes that it is aimed at essentially the conditions governing the performance of the President of the Republic of Moldova concerning atribuției nomination for the post of Prime Minister. It also requires the designation of constitutionality of Mr. Ion Sturza as candidate for the post of Prime Minister.
13. Thus, the appeal relates to a set of elements and principles with constitutional value related to democracy, the representative's mandate and the relationship between Parliament and the President of the Republic at the appointment of a new premier.
A. ADMISSIBILITY Of 14. In accordance with its decision of December 28, 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.
15. Also note that Court pursuant to article 135 paragraph 1. (1) (a) of the Constitution), article 4 para. (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), the appeal regarding constitutionality Presidential decrees, the competence of the Constitutional Court.
16. 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.
17. the Court has previously interpreted the note that article 98 of the Constitution by decision No. 16 of 24 April 2000 concerning the interpretation of certain provisions of article 73, 82, 86, 94, 98, 100 and 101 of the Constitution of the Republic of Moldova.
18. the Court observes that the problems addressed by the authors of the report I have not previously been the object of interpretation in the Court's constitutional jurisdiction.
19. Also note that Court, law No. 1115-XIV of 5 July 2000, Parliament revised the Constitution of Moldova, inter alia, article 98.
20. the Court finds that the interpretation of article authors requesting referral 98 para. (1) of the Constitution and the constitutionality of a presidential decree in the light of this interpretation.
21. the Court reiterates that, every time, when you ask the constitutionality of certain legal acts together with the interpretation of certain provisions of the constitutional interpretation of the constitutionality of the provisions in question includes by default.
22. In these circumstances and in accordance with article 6 para. (2) the Constitutional Court jurisdiction, note that in this question, concerning the constitutionality of the interpretation request absorbs the constitutional norms.
23. 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. Note that the Court has been seised is the competent legal and to decide on the constitutionality of the Decree of the President of the Republic of Moldova nr. 1877-VII of 21 December 2015.
24. Therefore, the Court will examine further referral to the Fund. The two issues that were subject to the Court for resolution are interrelated. Considering the fact that the explanation of the conditions the exercise of the abolition of the President to nominate the candidate for the post of Prime Minister to influence the reasoning concerning the constitutionality of the challenged Act, some issues will be addressed jointly.
25. To elucidate the issues addressed in the referral, the Court will operate, in particular, with the provisions of article 78, paragraph 1 98. (1) and (3) of the Constitution, with its previous case-law and with the principles enshrined in international law, using all methods of legal interpretation.
B. the CASE of alleged infringement of the FUND article 98 para. (1) of the Constitution combined with articles 98 paragraph 3. (3) and 78 para. (1) 26. According to the authors of the referral, the Act in question was adopted in breach of article 98 para. (1) of the Constitution, according to which: "(1) after consulting parliamentary factions, the President of the Republic of Moldova designates a candidate for the post of Prime Minister."
1. Arguments of the authors of the referral. The authors assert that the referral, in a parliamentary Republic, consultations with parliamentary factions the President for appointing a candidate for the post of Prime Minister are mandatory and may not wear a formal character.
28. Thus, in the authors ' vision of referral, in a situation where certain parliamentary factions reach a consensus to create a majority in Parliament for the granting of the vote of confidence the Government will submit to the head of State and a candidate for the post of Prime Minister, the President is obliged to designate, in accordance with article 11. 98 para. (1) of the Constitution. Otherwise, ignoring the wishes of the parliamentary majority means intentional challenge to the institutional conflict between Parliament and President, the dissolution of the legislature deliberate induction and triggering early elections.
29. In the authors ' vision of the referral, the President has the discretion to appoint a candidate for Prime Minister only where, after consultation, finds a deadlock between political factions, unable to reach a consensus on the formation of the Government.
30. However, in this case, according to the authors of the referral, the President must nominate the candidacy proposed by parliamentary factions, so as not to attract institutional blockages due to him.
31. In this connection, the authors, the referral shall appoint as candidate for Prime Minister proposed by the representative of the political party or political Alliance, which has the largest number of seats in Parliament.
32. In this context, the authors claim that the President's referral to carry the consultations with all parliamentary groups, including unaffiliated lawmakers.
33. According to the authors of the referral, during the months of November and December 2015, Moldovan President has had several rounds of consultations with parliamentary factions with a view to the appointment of the candidate for the post of Prime Minister. However, they represent a number of 14 Deputies in Parliament, former members of the Communist party faction in the Republic of Moldova (hereinafter "the PCRM"), there have been consulted in regard to the candidacy for the post of Prime Minister either before or after leaving the faction, although they have announced their readiness to participate in the creation of a parliamentary majority, capable of învestească Government. In support of these allegations, the authors noted that the referral had announced about leaving the faction at 9:00 on 21 December 2015, on the same day at 14:00 the President had consultations with other factions and at 16.00 the designated candidate for the post of Prime Minister.
34. In addition, according to the authors of the referral, the candidacy of Mr. Ion Sturza was proposed by the factions attending the consultations with the President of the Republic. They believe that since the President did not take into account the submissions advanced by the parliamentary factions invited for consultations, the candidacy of Mr. Ion Sturza represented an "appointments" and not a "designation".
35. Following these discussions, the authors claim that the referral because the President had failed to consult them in respect of the candidate for the post of Prime Minister, as well as to appoint a candidate who was not submitted by the parliamentary factions, the Decree was issued the contested in contravention of the requirements of article 98 para. (1) of the Constitution.
2.36 Arguments authorities. In his written opinion to the President of the Republic of Moldova mentioned that, after adoption by Parliament in October 29, 2015 the vote of no confidence to the Government and the dismissal of the President of Moldova has consulted on several occasions including parliamentary factions faction (of which the authors were part of the referral until 21 December 2015) for the appointment of a candidate for the post of Prime Minister.
37. Thus, on 9 November 2015 faction, including the authors of the referral, participated in consultations and expressed option for swearing in a Government technocrat, this opinion being made public. Therefore, the Group of 14 lawmakers, authors of the referral, participated in the consultation by means of the PCRM parliamentary faction.
38. On the other hand, the President's representative argued that the Group of 14 deputies who left faction of the party, the authors of the referral, requested not to participate in the consultations on 21 December 2015, the date when it was made public, the separation of facts, but also the nomination for the post of Prime Minister, unlike another group made up of 3 unaffiliated lawmakers. According to the President's representative, where such interest had been expressed, the Group of 14 MPs had been invited for the consultations that you have consulted disagreed, not only the fractions, but also groups of lawmakers.
39. According to the President, at the consultations on 21 December 2015, parliamentary factions have not agreed on a candidate for the post of Prime Minister, nor the creation of a parliamentary majority. In such event, making use of the right granted by article 98 para. (1) of the Constitution, but also taking into account the fact that the constitutional term of 2009 the new Government expired, the Moldovan President has issued Decree No. 1877-VII on the appointment of Mr. Ion Sturza as candidate for the post of Prime Minister.
40. The Parliament has noted that the constitutional procedure of prior consultation of the parliamentary factions began on 6 November 2015 and ended with the appointment on 21 December 2015 of the candidate for the post of Prime Minister.
41. With reference to the group consisting of 14 deputies who left the PCRM, Parliament considers that it has an uncertain status. According to article 4 para. (11) of the Parliament's regulation, "any change that occurs within the parliamentary faction is brought to the attention of Parliament in plenary session". Therefore, since there have been no sessions, leaving the faction by the 14 MPs has been brought to the attention of Parliament.
42. in the procedure of consultation with the parliamentary factions, the President of Parliament noted that, prior to designate a candidate for the post of Prime Minister, is forced to submit to parliamentary fractions for examination, in order to obtain the support of the parliamentary majority, or ask the parliamentary factions for consultations to propose candidates, on which they are willing to support them.
43. According to the Parliament, as a candidate for the post of Prime Minister is to be examined by all parliamentary factions. If the parliamentary fractions do not constitute the majority required for the Government to grant a vote of confidence, then consulting the entire legislature, including independent deputies, it becomes absolutely necessary, especially since they can get during the parliamentary term to represent a significant number.
44. In this context, Parliament considered that, in the event that cannot be identified a parliamentary majority, the President to take into account a candidate's image could be a factor in the consolidation of a parliamentary majority for the purpose of voting a Government.
3. Assessment of the Court 3.1. 3.1.1. General principles Judicial interpretation 45. The part of amendment to the Constitution of formal and informal, the Venice Commission noted: "109. A formal amendment is not the only form of constitutional change, and in some systems or even the most important. Leaving aside the revolutionary acts or unlawful, the two most important avenues of modifying legitimate alternatives to judicial interpretation of the Constitution are the development of the unwritten political conventions supplementing or contradict the written text. How these two means operating in a system-specific influences the need for a constitutional amendment formally. "
[Report on the constitutional amendment, adopted by the Venice Commission, in the framework of the plenary session 81 (CDL-AD (2010) 001, 11-12 December 2009)] 46. With reference to the role of judicial interpretation, the Venice Commission noted: "110. Many constitutional systems show with abundance that can occur even substantial changes without changing the text, thanks to judicial interpretation. The classic example is the way in which the U.S. Supreme Court has developed over the years, the content of the Constitution from 1787, far beyond the 27 formal amendments. Although there are examples in which courts have played an important role in shaping the Constitution, there are however in Europe a number of courtyards that have contributed substantially to the development of their constitutions through interpretation and application. It is, in particular, for countries equipped with "constitutional courts", a model which, over the past few years, has been adopted by almost all the countries of Central and Eastern Europe. [...]
112. the Commission from Venice repeatedly welcomed and endorsed the model of "Constitutional Court", which is now widespread in Europe. This model is generally favorable interpretation of constitutional judicial review. Such courts can legitimately contribute to developing their national constitutional systems. […]”
[Report on the constitutional amendment, adopted by the Venice Commission, in the framework of the plenary session 81 (CDL-AD (2010) 001, 11-12 December 2009)] 47. Thus, the interpretation of the text of the Constitution by the constitutional jurisdiction, which may be inferred from the express provisions of the Constitution of the new principles of constitutional value, is one of the ways through which it carries out the multiplication of constitutional norms.
48. with the Prerogative Court was vested in it by article 135 paragraph 1. (1) letter b) of the Constitution requires the authentic meaning and of constitutional norms, which can be done through textual interpretation or functioning, insofar as they can be inferred from the text of the Constitution, taking into account the generic nature of the rule, the concrete situations that the legislature did not provide them at the time of drafting the rule, subsequent rules (related or even contradictory), complex situations in which the rule must be applied, etc. 49. Also, the Court determined the meaning of authentic and full of constitutional norms in conjunction with other constitutional provisions, in order to ensure the unity of constitutional matter, rationale and operation of the institutions and the balance of powers.
50. The various categories of constitutional provisions and raises various questions often require a quite different approach with regard to the interpretation and application.
51. Unlike the provisions on human rights, which are more general and more flexible institutional rules governing a specific procedure governing or competence should be clear in order to create political stability and predictability.
52. Interpretation of rules focuses on the institutional balance of powers of the Executive, legislative and judicial process laid down in the Constitution, in the light of European and international standards relating to democracy and the rule of law, and the common constitutional heritage shapes the European ruling, taking into account national peculiarities.
3.1.2. the practice of other States concerning the nomination for the post of Prime Minister and form a Government 53. This process is specific to each company individually, but he is under the influence of factors such as:-the nature of the political regime and the constitutional system;
-form of Government;
-the place and the role, functions and powers of the other institutions of State power in the political life, in particular the Parliament and the presidential institution.
54. The democratic societies there are a variety of situations, the roles of the President and of the Parliament in the formation of the Government.
55. In parliamentary republics, Parliament has a major role in the appointment of the Chief Executive and other members of the Government (Germany, Italy). The President has the role of media and political conflicts to represent externally, country executive powers.
56. In the republics semiprezidenţiale (France, Russia), the head of State exercises an important role in the construction and operation of the Government, thereby circumventing or violating the insignia of power the legislature. The President is proposing to Parliament the Prime Minister appoints Ministers towards validation and, upon the proposal of the Prime Minister.
57. In States with presidential form of Government (USA), there is a Prime Minister, so the position of head of Government and head of State being carried out by the President of the State. In presidential republics, President (directly elected by the citizens) exercising executive power, the President is the Chief Executive, and he formed the team and leads the Government, but his actions are strongly controlled by Parliament, thus preventing such abuses.
58. The principle, from which starts in democratic States, regardless of the form of Government is that Government needs to express the will of the majority in Parliament, and to govern it must have the support of the parliamentary majority.
59. It is practice, not just in democratic republics. In France, for example, the Constitution says about designating (appointing) Prime Minister just so: "President of the Republic appoints the Prime Minister," without consultation, without any other constraints. In theory, the French President could appoint anyone Prime Minister, someone from his party, regardless of the parliamentary majority. In practice, however, the French President has not named anyone other than ever on the one proposed by the parliamentary majority, even when it belonged to his opponents or despite the fact that the presidential party was represented by most members of Parliament, and the parliamentary majority was composed of two smaller parties.
60. This happened three times in the last 30 years, the most notable event occurred in 1986, when Socialist President François Mitterrand named him Prime Minister on his opponent Jacques Chirac (later named him as Eduard Balladur, and a few years later President Chirac appointed Socialist Premier Lionel Jospin's). This practice was justified on the basis of the constitutional order following arguments: "why do we have a coexistence or cohabitation? After all what does this tell us? When there is a new majority that will be essential in March 16, 1986, the President of the Republic resigns or gives way ("demet soumet is egg"). Or what is my role? Why I chose French? Without a doubt, because I was in 1981 at the head of a vast left-wing movements; because I was, and because they are socialist and because people wanted to see the Socialists at work, but also because a President of the Republic becomes immediately something other than a party or representative of a faction of the French opinion: he becomes the President of all the French. And the Constitution, which is our ultimate law, obliges the President to a particular role.
I'll be brief: first President of the Republic shall ensure-I must assure the continuity of the State-and proper functioning of the public powers, that says our article 5 of the Constitution. You cannot ensure the continuity of the State when an event occurs the election going away. This is not acceptable. Then, to ensure the continuity of the State is what I did on March 17, when I announced that I would call the French an eminent representative of the new majority, which I did on March 18.
Secondly, the Constitution in article 5 asks, ask the President to be the guarantor of national independence and territorial integrity, what he wants to say that the President has a pre-eminent role, not exclusively, but eminent, primordial in the fields of Foreign Affairs and defense, being the boss of the armies.
You end up saying that there is a third point, which is located in the preamble of the Constitution, in article 2: the President must ensure the application of the principles on which is based the Republic indivisible, secular, democratic and social. Respect the role of Government. I won't intervene unless found involved one of the three responsibilities that we have just enumerated. "
[Interview with Mitterrand (TF1, 29 March 1987)] 61. In parliamentary republics where the President is elected by Parliament (Estonia, Germany, Greece, Italy, Latvia, Malta, Hungary), powers to nominate the Prime Minister and dissolve Parliament.
62. In Hungary, the Constitution stipulates that the Prime Minister is elected by the National Assembly on the proposal of the President of the Republic (art. 16 para. (3)). In practice, however, the President appoints the leader of the political party that won the majority of seats in the National Assembly of Hungary for the post of Prime Minister. If any party has not obtained a majority, the President asks the leader of the largest party to try to form a coalition Government. Therefore, the election of members of a political party in Parliament is tantamount to a vote for that party's leader becoming Prime Minister.
63. In Greece, the Constitution provides that the President of the Republic shall appoint the Prime Minister and, upon the proposal of the latter, shall appoint and revoke the other members of the Cabinet of Ministers and State Secretaries is named Prime Minister, head of the political party holding an absolute majority of seats in Parliament. In the event that no party holds an absolute majority, the President of the Republic shall grant the head of the party with a majority mandate relative an exploratory to assess whether there is a possibility to form a Government that can enjoy the confidence of Parliament (art. 37).
64. In Estonia, according to the Constitution, the President designates a candidate for the post of Prime Minister that Parliament authorizes it by voting to form the Government. If the candidate fails to form a Government, under the conditions and time-limits, the right to nominate a candidate for Prime Minister shall be the responsibility of Parliament (art. 89).
65. In Latvia, according to the Constitution, the Government is composed of the Prime Minister, to whom i entrusted the President to this (art. 56). In order to fulfil its duties, the Prime Minister and the other Ministers must enjoy the confidence of the Parliament in the face of which shall be responsible for their work (art. 59). On the other hand, the President only has the right to propose the dissolution of Parliament in this respect being organised a national referendum (art. 48).
66. In Malta, under the Constitution, the President appoints as Prime Minister a member of the House of representatives, which, in his opinion, is the most competent to ask for the support of the majority of the members of the respective Chambers and, acting on the basis of the recommendation made by the Prime Minister, will appoint the remaining Ministers of members of the House of representatives (art. 80).
67. In the Czech Republic, the President of the Republic shall appoint the Prime Minister and, on the basis of its proposal, the other members of the Government entrusts the management of ministries and other departments. If the Government receives in the second attempted a vote of confidence of the Chamber of Deputies, the President of the Republic shall appoint the Prime Minister on the basis of a proposal from the President of the Chamber of Deputies (art. 68).
68. In Italy, the President of the Republic shall appoint the President of the Council of Ministers, on a proposal of the latter, the Ministers (art. 92). In practice, the President consults the Presidents of both Chambers, parliamentary groups and delegations of Senators for life. The President of the Republic may dissolve one or both chambers of Parliament only after consultation with the Presidents of Parliament (art. 88).
69. In Germany, the Federal Preşedin Federal Chancellor called tele elected Bundestag (article 63).
70. In any parliamentary Republic the President chosen by the parliamentary majority has no right to dissolve the Parliament on the grounds that an absolute majority of Deputies doesn't accept the Premiership candidate.
71. In the European Union there is no instance in which a country may appoint a Government due to a blockage, caused by ignoring the will of the President of the parliamentary majority.
3.1.3. The form of Government 72. Form of Government shall designate how exercise and manifestation of the power of the State, the establishment and the functioning of its organs.
73. in part pertaining to the election of a ruling, the Commission pointed at Venice the need for constant clear and predictable rules, which would rule out political conflicts: "since the new Constitution was adopted for the first time in most of Eastern Europe and Central in the mid 1990s, in several countries there have been subsequent amendments that have strengthened the national parliaments. In this respect, the Commission has stated repeatedly that the choice between a presidential and parliamentary system is a political one, that each distinct State must do so freely. However, the system chosen should be as clear as possible, and the provisions must not create room for unnecessary complications and political conflicts. In a parliamentary system, must be adhered to fundamental requirements arising from the principle of the separation of powers. Instead, if a presidential system is chosen, it should be met certain minimum requirements of parliamentary control and influence. "
[Report on the constitutional amendment, adopted by the Venice Commission in the framework of the plenary session 81 (CDL-AD (2010) 001, 11-12 December 2009), § 143] 74. The part pertaining to the form of Government in the Republic of Moldova, the Court recalls its findings in the case law established ruling concerning the constitutional reform of 2000: "according to article 1, paragraph 1. (2) of the Constitution, the ruling of the State form is the Republic. According to the doctrine of the rule of law, the method of electing the head of State shall determine the form of Government: presidential parliamentary Republic or Republic, and lags in terms of legally head of State on a particular position towards Parliament and, in particular, towards the people.
The presidential Republic head of State is elected by the citizens and legally, it is situated on the same position with Parliament, with broader powers as a result of the fact that its mandate comes from the whole nation, for the people.
The parliamentary Republic is characterized by the election of the President by Parliament and due to this fact the legal position of the head of State is inferior and subordinate to Parliament. [...]
In the context of those referred to the Court mentions that until 05.07.2000, according to article 78 of the Constitution, the President was elected by the citizens and from the standpoint of representativeness was the same position with the legislative authority, given the broad powers. The President had the right to initiate the revision of the Constitution (article 141 (para. 1 c))), to nominate a candidate for the Prime Minister without consulting parliamentary factions (article 98 (para. 1)), to take part in the meetings of the Government, to preside over the meetings of the Government, to consult with the Government of the urgent and critical (art. 83 of the Constitution).
The second period of constitutional development in accordance with the doctrine of law, meets the characteristics of a parliamentary Republic in which the powers of the President are more limited. Change of form of Government requires a different legal status of the presidential decrees and other objects (areas) regulations.
By the law No. 1115-XIV of 05.07.2000 legislature amended article 78 of the Constitution, giving Parliament the power to elect the President. Accordingly, the legal position of the head of State position became lower Parliament, at the same time the President was deprived of a number of prerogatives set forth above. [...]
The Constitutional Court considers that in the framework of the parliamentary Republic, in which the status of the head of State is the President of lower status, Parliament exercises the function of guarantor of the sovereignty of national independence, unity and territorial integrity of the country leading the constitutional norms that regulate the powers of the President and the Supreme representative body of laws in those areas. "
[Judgment No. 17 of July 12, 2010, case No. 30 of 1 October 2013] 75. Thus, with regard to the legal status of the President of the Republic of Moldova, to be operated on the distinction between the mandate before and after the constitutional reform referred to supra.
76. Therefore, the Court note that interpretation of article 98 para. (1) of the Constitution to be made taking into account the parliamentary form of Government in the Republic of Moldova. In this sense, any interpretation must take account of the balance of powers and the institutional architecture of the State, and the constitutional obligation of State authorities to pursue in good faith and in a spirit of loyal cooperation between the powers that the basic law lays down the respective task.
3.2. Application of the principles set out in this question 77. According to paragraph 1 of article 60. (1) of the Constitution, the Parliament is the Supreme representative body of the people of the Republic of Moldova.
78. According to article 77 of the Constitution, 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.
79. This constitutional norm assigns to the head of State a dual role, namely: 1) to represent the State and 2) to be the guarantor of national independence, sovereignty, unity and territorial integrity of the country.
80. the constitutional logic of the construction law States, the heads of State expressed a political will because it would inevitably confuse with subjective willingness therefore discretionary, the holder of the respective function.
81. In Judgement No. 7 of 18 may 2013, the Court noted: "106. Under the control of powers in a State, based on your "brakes and contrabalanţelor," the Executive cannot be established without a will expressed by express legislative power, through Parliament, the Government pursued in his investment process. In accordance with constitutional procedures, the Government, as representative of the executive power, is the work of a joint legislator voting representative authority as Supreme, to which the nation has delegated the highest-value sovereignty and State power (art. 2 of the Constitution) and the head of State, as the guarantor of sovereignty (article 77 of the Constitution). "
82. the Court note that under the provisions of article 98 of the Constitution, it appears that the President is obliged to cooperate with Parliament in terms of the Government's appointment, both public authorities having regard to their constitutional role in the procedures for the appointment of the Government.
3.2.1. The relationship between Parliament and the President of the Republic the Government 83. The Court note that Government formation process is complex, including several stages: a) nomination for the post of Prime Minister;
b governance program) development and establishment of governmental team;
c) getting the investiture vote of the Parliament;
d) the oath of allegiance.
84. the Court notes that article 98 para. (1) of the Constitution provides for the right of the President to nominate a candidate for the post of Prime Minister. In the meantime, please note that, although the Court is an exclusive responsibility of the nomination may not be discretionary because the President will nominate a candidate for the post of premier only after consulting parliamentary factions.
85. Also note that the text of the Constitutional Court does not provide, after the nomination for the post of Prime Minister, President of the Republic the right to express reservations about Government team accepted by Parliament or Government program. Thus, from the time the designated candidate for the post of Prime Minister, President of the Republic no longer has any responsibility, whether legal, political, either against the way this person get the support of the parliamentary majority.
86. once he is appointed by the President of the Republic, the candidate for the post of Prime Minister has discretion to include any person in the list of members of the Government, which it will submit to Parliament. Is a discretionary right of the candidate for the post of Prime Minister, which he may exercise it, assuming the responsibility, however, for the failure of its rejection in Parliament including the Governing Programme, since the list of members of the Government is supported in the block, and the Parliament will rule by vote the list in full, and not to the persons entered on the list.
87. If the program and list of members of the Government are supported by Parliament, opens the procedure for the nomination of the Government, the President of the Republic takes an active role, but one formal and strict State Protocol, which shall be limited to the issuance and receipt of the oath of allegiance.
88. Thus, in the procedure of formation and was invested by the Government to the Parliament vote is essential. The Government will respond to Parliament only political, you can dismiss.
89. On the basis of reasoning, analyzing the share of each of the two public authorities in the process of forming the Government, the Court finds that the role of Parliament is a decisive year in relation to the role of President of the Republic. This difference in weight is due to the essence of parliamentary form of Government.
3.2.2. The relationship between Parliament and the President of the Republic in the nomination for the post of Prime Minister) of the parliamentary factions. For the purposes of determining the meaning of "consultations" with President of the parliamentary fractions, the Court will examine the rationale for appointing the candidate for Prime Minister.
91. the Court note that the purpose of the consultation is to identify the political support of the deputies for a particular person, able to form a Government that would enjoy the confidence of Parliament. What counts in these consultations is to obtain political support for what could be designated as a candidate for the post of Prime Minister. In this key should be seen consulting that the head of State.
92. For the same purpose, the President may come from consultations with a proposal of his own, which could be accepted. It is, however, equally possible that within this political consultation proposed by the President's nominee for the post of Prime Minister may not be acknowledged by its consultation partners.
93. In this context, note that the President of the Court cannot make political dialogue partners whom he consults. In this role, the President of the Republic only acts as a representative of the State, which goes to the right and the responsibility to find a path of dialogue and the evaluation of the will and the capacity to support the deputies refer to in terms of a particular parliamentary candidate.
94. Referring, in consultation to which reference is made in article 98 of the Constitution, the candidate for the post of Prime Minister, President of the Republic must prove its impartiality and political neutrality, its equidistance towards all groups in Parliament. The President has no constitutional right to parliamentary groups overlap.
95. At the same time, the President is not denying the right to assess the qualities, competence, experience and, in fact, a person's ability, or not involved politically, to lead the Government and to attract political support of the parliamentary majority, which they will support throughout the duration of the parliamentary term, but has no constitutional support to impose its own candidate. Thus, the President intervenes solely as the representative of the State, to establish and formalize meaning and function through its solemnity and to maintain its balance with the power authority between Parliament and a possible future Government.
b) parliamentary factions and independent or unaffiliated lawmakers 96. Please note that court a number of constitutional provisions make reference to parliamentary factions. Thus, apart from article 98 para. (1) the Constitution stipulates in article 64 para. (3) the Vice-Presidents of the Parliament are elected on the proposal of the President of the Parliament, with consultation of the parliamentary factions. Also, according to art. 85 paragraph 4. (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.
97. At the same time, the constitutional provisions do not regulate the order of formation, operation, and termination of these entities.
98. In this context, the Court notes that, according to the provisions of the regulations, the parliamentary factions representing the main form of political organization of the parliamentary parties in the Parliament and is constituted by the Association of lawmakers who choices on the candidate lists of the same political party, of the same political parties, electoral alliances or political alliances. These groups, factions, according to the functions they fulfil, are part of the organizational structure of the Parliament on the basis of political affinity and are working.
99. In the absence of constitutional regulations for the formation and termination of parliamentary factions, the provisions of the rules governing the Parliament deputies to be analysed in the light of the constitutional provisions relating to the status of Deputy, from the point of view of the relationship between it and the parliamentary faction or party of which he is a member.
100. the Court note that article 68 of the law sets forth the Fundamental characteristics of the parliamentary mandate, namely that "in the exercise of their deputies are in the service of the people" and "any imperative mandate is null". This article puts forward his limitless mandate representative and constitutes the starting point in explaining the constitutional relations between the lawmaker and his voters, political party which propelled him.
101. the interpretation of those provisions Into the Constitutional Court, by decision No. 8 of 19 June 2012, stated: "34. According to the Court, the mandate of lawmaker expresses the relationship to the whole nation, parliamentarian in the service which is not only with voters who voted him, although they benefit from the presence of parliamentarian by virtue of its obligation to keep in touch with voters. Thus, the phrase "being in the service of the people" in article 68 para. (1) of the Constitution means that the election and until expiry, each Deputy becomes the representative of the people as a whole and has as its mission to serve the common interest of the people, and not just the party. [...]
35. In defining these interests, the option is free, parliamentarian even though he belongs to a party that he represents in Parliament. In accordance with article 2 (2). (2) of the Constitution, no person, no part of any social group, political party or other public party may exercise State power in their own name. In this respect, the fundamental principles of the rule of law must be respected scrupulously in order to obstacula the temptation which may have one or more political parties, which have become the majority in Parliament, to transform the "elect" party activists "or central public administration structures and local party organs in" ", Central or local. [...]
43. Thus, as there are representatives of the factions of the population, parliamentarians cannot be private interests defenders, they are absolutely free in the performance of their Office and not have the obligation to fulfil the commitments that they could take before choosing or any instructions from voters during the mandate formulated. Elected officials do not have a legal obligation to support their party or group decisions in Parliament. Furthermore, if the legislator, by his behavior, causing damage thereto, the party or the Group may exclude, however, this exclusion does not entail a parliamentary mandate. This, obviously, does not prevent the legislator that, once elected, to honour and comply with the discipline of the Group's parliamentary vote in which it participates. [...]
47. These characteristics confer a special Deputy to guard against voter pressure and with the support of the party which entered Parliament. […]”
102. the Venice Commission, in Report No. CDL-AD (2009) 027 on the terms of imperative and similar practices, stated: "[...] The Venice Commission has not ceased to argue that the loss of the quality of the representative, due to the change of political afiliaţiei is contrary to the principle of free and independent mandate. Although the purpose pursued by this type of measures can be considered to be somewhat justified, fundamental constitutional principle that forbids or other imperative mandate similar practices aimed at depriving a representative of its mandate, must prevail as a cornerstone of democratic constitutionalism. "
103. In the context of those exposed, the Court points out that, by virtue of the mandate of the representative, Deputy, once entered in the exercise of their mandate, no longer has a legal obligation to uphold the decisions of the party or his faction within the legislature.
104. Thus, in the light of the constitutional principles which reject any form of imperative mandate, the State is prohibited from changing the option and political affiliation.
105. At the same time, keep in mind that a fundamental principle of parliamentary procedure that is rarely mentioned explicitly in their national constitutions, but can be inferred on the path of interpretation, it is equality between the representatives in Parliament. In this respect, the Venice Commission noted: "110. […] As mentioned, a Parliament is an institution made up of elected representatives, with the representative of as the main legal entity, starting from the idea that all these representatives should, in principle, have the same rights and obligations, regardless of whether they belong to the ruling party or the opposition.
111. This principle of equality is mentioned in resolution No. 1601 (2008) of the Parliamentary Assembly: "equal treatment of members of parliaments, both as individual members and as members of a political group, it must be ensured in every aspect of the exercise of their mandate and the activities of the Parliament". Venice Commission, for its part, also in the code of good practice in the field of political parties recalled the need to respect the principle of equality.
112. In EU legislation, the principle of equality members of European Parliament (MEPs) has been recognized by judicial process by the Court of first instance, which in 2001 held that "the conditions under which deputies who were invested with a democratic mandate must exercise parliamentary mandate cannot be affected by their membership in a political group to an extent that exceeds what is necessary to achieve the legitimate goals pursued by Parliament by organizing the political groups ".
113. The principle of equality members of Parliament may be limited to what is normal for the purpose of efficiency, since it would be impossible in many cases to obtain decisions in an Assembly where all members have equal procedural rights of participation. Therefore, the principle of equality members of Parliament is normally supplemented by a principle of proportional representation and participation in parliamentary groups. "
[Report on the role of the opposition in a democratic Parliament, adopted by the Venice Commission in the framework of the plenary session 84 (CDL-AD (2010) 025, 15-16 October 2010)] 106. Also note that through the Court process to ensure consultation with all parliamentary political parties, because only political parties can ensure balance and political stability.
107. Following these discussions, but also taking into account the principles set out in its previous jurisprudence, the Court note that in order to achieve its constitutional abolition to propose the candidate for Prime Minister, the President of the Republic of Moldova is elected parliamentary majority, must ensure, in consultation with the parliamentary factions, both support the parliamentary majority and the possible constructive opposition to minority-owned.
108. Consequently, in the constitutional sense, the notion of "consultation of the parliamentary factions ' non-attached deputies, covers groups which intend carrying out common programmatic objectives and have vocation to determine or influence the course of social and political events.
3.2.3 the principle the majority of 109. Article 5 para. (1) of the Constitution to regulate that democracy in the Republic of Moldova is exercised under conditions of political pluralism, which is incompatible with dictatorship or totalitarianism.
110. the Basic Principle of democracy is that of the majority. The decision is taken by it and by those who represent a majority of the voters, no matter how many parties is formed this majority or if there is a larger party (minority) than each of the parties that make up the majority. Ignoring the will of the majority is the dictatorship.
111. According to article 98 of the Constitution: "(1) after consulting parliamentary factions, the President of the Republic of Moldova designates a candidate for the post of Prime Minister.
(3) the work schedule and the list of the Government debating upon sitting in Parliament. This trust of the Government by a majority vote of the elected deputies. […]”
112. the Court finds that the provisions of paragraph 2. (3) article 98 of the Constitution follows the necessity of identifying the parliamentary majority.
113. It is very clear that only the parliamentary majority can only trust the Prime Minister, its program and only she can învesti Government. Here the role of the consultations (see §§ 91-97 supra).
114. In this context, the Court cannot accept the claim that the authors of the referral, the President must nominate the candidacy or one of the candidates proposed by the parliamentary faction (fractions) in the consultations (the party with the largest number of seats in Parliament), which supposedly will be granted a vote of confidence. In this matter, the Constitutional Court has voted previously, acting that: "by the phrase" the parliamentary majority "shall mean the absolute majority of the elected deputies in Parliament, which, on the basis of constitutional norms, may give vote of confidence to the Government and the Prime Minister, appointed by the President of the Republic" (Judgement No. 21 of 2 July 1998).
115. Thus, taking into account the provisions of paragraph (3) of article 98, half plus one of the total number of deputies elected to Parliament.
116. Following these discussions, the Prime Minister should be appointed only the person proposed by the party or coalition which holds the parliamentary majority, no matter who is this person: an independent, leader of a smaller party, the leader of a party member or higher. And whether the person comes from the party with the largest number of members of Parliament (if the party with the largest number of parliamentarians does not hold an absolute majority in Parliament). This is the constitutional procedure for the nomination and democratic.
117. Consequently, the interpretation of the meaning of existence of a discretionary right of the President to nominate the candidate for the post of Prime Minister is devoid of legal logic and involves a reduction to the absurd, because the President cannot impose on Parliament a certain option regarding the person who will occupy the post of Prime Minister, this being likely to create premises for institutional conflicts.
118. For the reasons exposed, please note that there is no constitutional reason and democratic because the President not to nominate as candidate for the post of Prime Minister the person who has the support of the parliamentary majority, be it opposing the President.
119. In this context, please note that when no party holds an absolute majority in the Parliament, the President must consult Parliament not just pro forma, but designate the candidate supported by the majority, even if approved by the President's Party is not part of majority.
120. The President shall appoint to the position of Prime Minister candidate that satisfies the conditions for designation and appointment and which enjoys the support of the parliamentary majority.
121. in the case of the formation of the Government as a result of the parliamentary elections, the President cannot refuse to recognize the result of the popular vote, with designation as follows: the Chairman notes that the official results of the elections and entrust the mandate to form a Government, which has been proposed by an absolute majority in Parliament. Thus, whether it constitutes a majority of the political forces in Parliament either dissolve the Parliament and early elections.
122. In this respect, the Court starts from the premise that the President should behave as an authority finds, but does not interpret or modify the outcome of elections, being constrained by a particular article, to nominate a candidate for the post of Prime Minister after his own will, but according to the will expressed by the voters, to designate the person proposed by the party or coalition which won an absolute majority of the mandates.
123. An interpretation contrary to the provisions of the Constitution would induce the idea that its citizens do not exercise actual sovereignty, that their vote doesn't count, that whenever the outcome of elections may be denied by the President.
124. Similarly, when the change of Government after a period of time of the election, and its political forces has changed, the President must exercise consultations with parliamentary factions in order to find a majority capable of supporting the Government's swearing in.
125. The Court considers that this is the only solution designed to eliminate, at least in this respect, the institutional conflict, being a natural act clarifies the powers of the President with regard to the appointment of the Prime Minister, while ensuring the supremacy of the Parliament, as an institution of democracy.
126. the Court points out that the President of the Republic is the emanation of the parliamentary majority, which doesn't allow him to ignore the possible formation of an absolute majority in Parliament. This reasoning is all the more pertinent, the failure of the parliamentary majority of the candidate proposed by the President draws for Parliament dissolution penalty by the President (article 85 paragraph 4. (1) and (2) of the Constitution).
127. the principle of parliamentary majority is confirmed by the fact that all the circumstances of what entails the dissolution of Parliament are specifically related to the malfunctioning of the majority (on the training of Government failure, blocking the voting laws, elect the President).
128. the Court considers it important to stress the need for the establishment of transparent parliamentary majority, in order for the elector to identify political actors to whom responsibility for the Act of Government policy. For these reasons, the parliamentary majority to be formalized, not just stated, indicating that lawmakers are accompanied by the availability of supporting a specific candidate for the Prime Minister and with the official notification to the President of the Republic of Moldova. In this context, the Court will issue an address to Parliament for regulating such situations in the spirit of this ruling considerations.
Conclusions 129. Seen on the balance sheet, resulted from legislative forum choices, and the President, the Parliament, is emanation understands that Parliament would be able to form a Government that is at his discretion. Here comes the President's role, namely to ensure the effective and smooth structure of the team who will govern the country for the next term. Through the prestige and authority of the President to form a new Government supports representative, it will be called only if it will get the support of the Parliament.
130. Thus, in the case of the establishment of an absolute parliamentary majority, the President of the Republic of Moldova will designate the candidate supported by this majority.
131. Only where there is an absolute parliamentary majority, the President of the Republic of Moldova shall, after consultations with the parliamentary factions, appoint a candidate for Prime Minister, even if the factions do not agree with the proposal of the President.
132. the exercise this way abolition of the President on the appointment of the candidate for the post of Prime Minister, governed by article 98 of the Constitution is likely to maintain relations between Parliament and the President to balance required by the Constitution for parliamentary Republic. The Court considers that this is the raison d ' être of the Parliament President, which emerges from article 98 of the Constitution, both contributing authorities, through a political action, intermingling in the formation of the future Government team. Parliament acting on genuine political criteria, in which citizens ' consent is expressed indirectly for the formation of a Government headed by a Prime Minister who enjoys the confidence and support of a majority in Parliament.
3.3. The constitutionality of the Decree nr. 1877/2015 133. The court notice that, in the absence of a parliamentary majority, the omission of a fact or caucus or denial of some factions to participate in the consultations or to support a particular candidate may not invalidate or annul the constitutional right of the President to nominate a candidate for the post of Prime Minister.
134. In these circumstances, although some fractions prior neconsultarea/parliamentary groups constitute an omission in the process of appointing the candidate for the post of Prime Minister in the second kind of face that fact does not affect the substance of the right faction or group of parliamentarians to express their attitude towards the proposed candidate for President of the Republic of Moldova through a vote in Parliament.
135. Therefore, in part pertaining to the constitutionality of the Decree nr. 1877-VII of 21 December 2015, given that there was an absolute parliamentary majority up to its date of issue, the President has acted in conformity with its constitutional powers, a candidate for the post of Prime Minister, even if his proposal was not accepted by some factions.
Under article 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. the appeal is rejected as unfounded a group of deputies in Parliament for notification constitutionality control Presidential Decree nr. 1877-VII of 21 December 2015 on the appointment of the candidate for the post of Prime Minister.
2. Recognizes the President's Constitutional Decree nr. 1877-VII of 21 December 2015 on the appointment of the candidate for the post of Prime Minister.
3. For the purposes of article 98 para. (1) in conjunction with articles 98 paragraph 3. (3) and 78 para. (1) of the Constitution: the President has the right to) propose the candidate for Prime Minister constitutes a constitutional obligation;
b) in order to achieve its constitutional abolition to propose the candidate for Prime Minister, the President of the Republic of Moldova is elected parliamentary majority, must provide support through parliamentary factions of the parliamentary majority, as well as possible constructive opposition to minority-owned:-where there is an absolute parliamentary majority, the President of the Republic of Moldova shall, after consultations with the parliamentary factions , to nominate a candidate for the post of Prime Minister, even if the factions do not agree with the proposal of the President;
-in the case of the establishment of an absolute parliamentary majority, the President of the Republic of Moldova shall designate the candidate supported by this majority;
c) parliamentary majority to be formalized, not just declared, with indication of the deputies, with specification availability to support a certain candidate for the post of Prime Minister and official notification to the President of the Republic of Moldova;
d) in constitutional sense, the notion of "consultation of the parliamentary factions" includes groups unaffiliated lawmakers.
4. 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.
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