L’invité D&B: Constitutional Court, European integration and (geo)political struggle in Moldova

By Dionis Cenuşa° – initially published on IPN

dionis_cenusa_thumb° Dionis Cenuşa is a political scientist from Moldova who works as Program Director on Energy Security at the Independent Economic Think-tank “Expert-Group”, based in Chisinau.

The specification of new rules of the game by the case law of the Court opened ‘Pandora’s box’ and generated an excess of political unpredictability

Starting with 2009, the influence exerted by the Constitutional Court (CC) on the Moldovan politics has increased substantially. The Court managed to assert itself as an active player in the political sphere, often changing radically the trajectory of events. The CC’s contribution to the political processes in the country increased yet amid the critical decline in the weight of the other state institutions. Being in a relationship of official subordination to the Constitution only, the Court could act without any political impediment. Thus, this contributed to the redefining of the Romanian language as the official language (2014, 2017), classification the Russian troops in the Transnistrian region as “occupation forces” (2017) and even promotion of the initiative to enshrine the European course in the Constitution (IPN, December 18, 2017).

As a result of the interpretations made by the Court during the past eight years, a number of moments of political crises were prevented, including in 2018, when the pro-Russian President Igor Dodon was temporarily suspended from post repeatedly for his refusal to accept five new ministers and two new deputy ministers. On the other hand, these interpretations enabled the pro-EU governments of 2009-2017 to survive in conditions of austere legitimacy of the ruling political forces and unprecedented political corruption. On the other hand, there were set dangerous precedents for the democratic functioning of the country, regardless of the geopolitical orientation of the future rulers.

The price of the Court’s interventions, which were often controversial, is reflected in the intensification of the political forces’ interest in installing persons dominated by political views in the posts of judges of the Court (six judges). Adopting decisions that somehow unilaterally favored the ruling parties, some of the judges were perceived as entities close to the government circles. This refers inclusively to the previous CC president Alexandru Tanase (October 2011 – May 2017), who was recently proposed by Vladimir Plahotniuc and the Democrats for the post of minister of justice. In reaction to the repeated temporary suspension, President Dodon openly expressed his intention to change the judges immediately after the new parliamentary elections in order to “remedy” the situation at the Constitutional Court. Consequently, the struggle for control over the constitutional authorities will be harsh.

“Invisible hand” of Constitutional Court

The Court’s decision concerning the holding of the office of President on an interim basis of 2010 enabled to stop the early presidential elections caused in July 2009 and October 2010 by the impossibility of choosing the Head of State in Parliament. Furthermore, the Court allowed amending the procedure for electing the President, preventing thus new elections and facilitating the election of Nicolae Timofti as President in 2012. The Court’s judgment of March 2016 concerning the restoring of the direct election of the President (3DCFTAs.eu, March 2016) was another intervention with a major impact. Though the possibility of provoking early elections following the impossibility of electing the President in Parliament was excluded definitively, the Court’s decision reduced the political pressure on the part of the non-systemic opposition on the Democratic Party that, since 2016, has extended its political monopoly on the institutions. In the most recent episode of interpreting the constitutional provisions, a political conflict between the presidential administration controlled by the informal leader of the Socialists Igor Dodon and the Government controlled by the Democrats led by oligarch Vladimir Plahotniuc was unblocked. Thus, there was set the precedent of temporary suspension of the President from office. Consequently, in October 2017 the Government managed to fill the vacant post of minister of defense, while on January 2, 2018 the renewal of the Cabinet was validated following the suspension of President Dodon for the second time. This suits both the Democrats and the Socialists. Thus, the first found a constitutional method of overcoming a procedural obstacle that depended on President Dodon. The latter managed again to victimize themselves, re-launching the electoral messages used in 2016 to mobilize the population against the government described as “Euro-unionist”, in an electoral year.

The Court’s case law offered practical legal solutions for rapidly remedying the situations of political impasse, while the political forces started to more often use this instrument. Between 2013 and 2016, the number of applications submitted to the Court doubled or even trebled compared with the period during which the Party of Communists dominated government (2001-2009). This points to political forces’ greater trust in the Court’s power and to an enormous crisis in the state powers (Parliament, government, judiciary), which were atrophied by the ‘state capture’ phenomenon (IPN, May 2017). (See Table below)

 

Table. Number of applications filed to Constitutional Court in 2008-2016 and main examined cases

Year

Number of submitted applications

Major cases

2007 Total number – 31

Applications to interpret Constitution – 1

Applications to check constitutionality of acts- 27

2008 Total number – 24

Applications to interpret Constitution – 2

Applications to check constitutionality of acts – 22

2009 Total number – 30

Applications to interpret Constitution – 6

Applications to check constitutionality of acts – 17

– Lifting of restrictions concerning holding of public posts by persons holding dual nationality, including Romanian one.

– Specification of the concept of position of acting President of the state, which can be held by Parliament Speaker or Prime Minister, which resulted in the combination of the posts of Speaker and acting President by Mihai Ghimpu.

2010 Total number – 48

Applications to interpret Constitution – 4

Applications to check constitutionality of acts – 29

2011 Total number – 39

Applications to interpret Constitution – 4

Applications to check constitutionality of acts – 21

Modification of procedure for choosing the country’s President in Parliament, which resulted in the election of Nicolae Timofti.
2012 Total number – 41

Applications to interpret Constitution – 3

Applications to check constitutionality of acts – 31

2013 Total number – 53

Applications to interpret Constitution – 7

Applications to check constitutionality of acts – 37

– Introduction of impossibility of exercising powers by the Prime Minister of a government dismissed on suspicions of corruption, which ended with exclusion of Vlad Filat from Cabinet.

– Preconditions were created for declaring Romanian the official language.

 

2014 Total number – 61

Applications to interpret Constitution – 6

Applications to check constitutionality of acts – 49

Recognition of the Declaration of Independence as an integral part of the Constitution by which Moldova’s affiliation to the European values was confirmed.
2015 Total number – 59

Applications to interpret Constitution – 15

Applications to check constitutionality of acts – 29

2016 Total number – 163

Applications to interpret Constitution – 4

Applications to check constitutionality of acts – 30

Restoration of direct election of President by all the citizens as a result of which the opposition’s message, accompanied by mass protests, concerning the holding of a national referendum on the direct election of Head of State was neutralized.

 

Constitutional Court and European course

The Court’s decisions are also used to strengthen Moldova’s European course by the Democratic Party. Until now the Court adopted a series of decisions that are directly connected with the European integration.

The judgment of October 2014, by which the Court ascertained the constitutionality of the EU –Moldova Association Agreement adopted by Law No. 112 of July 2014 was the first step. This judgment was the first confrontation between the pro-Russian elements of the Moldovan political class and the Court’s case law. The same decision provided that there is interdependence between the Declaration of Independence of August 27, 1991 and the country’s Constitution, which makes the orientation to the EU be an element of the country’s constitutional identity.

The judgment of December 2017, which defines Moldova’s European orientation as a principle with constitutional value, was the second step taken by the Court in favor of the stipulation of the European integration course in the Constitution. It was thus authorized the amendment of the preamble and Articles 1 and 8 of the Constitution, by which the European integration and aspirations are to become the modus operandi of the state and whole society.

Owing to other interpretations by the Court, such as that of January 5, 2017, the government obtained the right to make changes to the legislation on the media so as to fight Russian propaganda, bypassing the consent of President Dodon. Such measures are used by the Democrats to attribute a kind of monopoly to the pro-European narrative, stirring up geopolitical antagonisms in public.
Even if the European integration is itself an important, even if difficult process of modernizing the country, the “constitutionalization” attempts imply major risks in a society split by geopolitical cleavages. On the one hand, the approach to enshrine the European integration in the Constitution is promoted by one of the most controversial political forces of Moldova. This disqualifies the initiative and puts the supporters of the European integration as well in a negative light. On the other hand, the European integration is not accepted by an absolute majority of people. There are pro-Russian parties able to win the parliamentary elections (PSRM), while the Autonomous Territorial Unit of Gagauzia, Taraclia district, Balti municipality and the Transnistrian region are populated by minorities that, even if they are small, are very sonorous and powerfully connected to the Russian values. Moreover, between 300,000 and 500,000 Moldovans are dependent on the Russian labor market.

Instead of conclusion…

The interaction with the Constitutional Court enabled the ruling parties to offset the own lack of legitimacy and decline in popular support. The forces that do not take part in governance looked yet in the Court for an institution that would balance the Democrats’ control over the state institutions, but this seldom decided in their favor.

The constructive role played by the Constitution perpetuated the political status-quo that ultimately undermined the democratic basis of the state.

It’s true that the High Court fluidized the political process. But the specification of new rules of the game by the case law of the Court opened ‘Pandora’s box’ and generated an excess of political unpredictability for the durability of the subsequent governments.

 

  1. […] Chiar dacă sunt preocupate de „aranjamentele” pentru scrutinul din decembrie 2018, autoritățile moldovenești nu realizează că ar obține mai mult sprijin în rândul populației, dacă ar implementa integral reformele convenite cu europenii și cerute de societatea civilă. O demonstrație în plus a unui angajament serios față de reforme ar fi renunțarea la instrumentele artificiale de promovare a integrării europene în Republica Moldova, precum este inițiativa de „constituționalizare” a vectorului european (Dalekoblisko,  10 Ianuarie 2018). […]

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