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1. The complaint filed by Vasile Bolea, Grigore Novac and Alexandr Suhodolski, deputies in the Parliament of the Republic of Moldova is partially admitted.
2. The Decree of the President of the Republic of Moldova no. 32-IX of February 11, 2021 on the nomination of the candidate for the position of Prime Minister is unconstitutional.
3. In order to comply with article 98 par. (1) of the Constitution, the parliamentary factions and the President of the Republic of Moldova must resort to new consultations.
4. The referral in the part referring to the request of the authors of the referral to assess whether by refusing to nominate Ms. Mariana Durleșteanu as a candidate proposed by the parliamentary majority for the position of Prime Minister the President of the Republic of Moldova has committed a serious act within the meaning of the article 89 para. (1) of the Constitution.
5. This decision is final, may not 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.
None.
DECISION
FOR THE CONTROL OF THE CONSTITUTIONALITY of the
Decree of the President of the Republic of Moldova no. 32-IX of 11 February 2021 on the nomination of the candidate for the position of Prime Minister
( notification no. 30a / 2021 )
CHISINAU
February 23, 2021
On behalf of the Republic of Moldova,
the Constitutional Court, judging by:
Ms. Domnica MANOLE, President,
Mr. Nicolae ROȘCA,
Ms. Liuba ȘOVA,
Mr. Serghei ȚURCAN,
Mr. Vladimir ȚURCAN, judges ,
with the participation of Mr. Dumitru Avornic, legal assistant,
Having regard to the notification lodged on 12 February 2021,
Having regard to the notice referred to it in open court,
Having regard to the records of the case, Proceedings in the Council Chamber,
makes the following decision:
PROCEDURE
1. At the origin of the case is the notification submitted to the Constitutional Court on February 12, 2021 based on articles 135 par. (1) lit. a) of the Constitution, 25 lit. g) of Law no. 317 of December 13, 1994 regarding the Constitutional Court and 38 par. (1) lit. g) of the Code of constitutional jurisdiction no. 502 of June 16, 1995, by Vasile Bolea, Grigore Novac and Alexandr Suhodolski, deputies in the Parliament of the Republic of Moldova.
2. The authors of the notification request the exercise of the constitutionality control of the Decree of the President of the Republic of Moldova no. 32-IX of February 11, 2021 on the nomination of the candidate for the position of Prime Minister.
3. By the decision of the Constitutional Court of 17 February 2021, the referral was declared admissible, without prejudice to the merits of the case.
4. In the process of examining the referral, the Constitutional Court requested the opinions of the Parliament, the President of the Republic of Moldova, the Government, the Institute for Legal, Political and Sociological Research, the Faculty of Law of the International Free University of Moldova and the Faculty of Law of the State University of Moldova.
5. Mr. Vasile Bolea, Mr. Grigore Novac and Mr. Alexandru Suhodolski, authors of the complaint, Mr. Valeriu Kuciuk, representative of the Parliament, and Ms. Olesea Stamate, representative of the President of the Republic, were present at the public hearing of the Court.
IN FACT
6. On 23 December 2020, Mr Ion Chicu resigned as Prime Minister of the Republic of Moldova.
7. On 28 December 2020, consultations took place between the President of the Republic of Moldova and the parliamentary factions in order to nominate a candidate for the post of Prime Minister.
8. On January 27, 2021, Ms. Maia Sandu, President of the Republic of Moldova, issued Decree no. 25-IX by which he nominated Mrs. Natalia Gavrilița as a candidate for the position of Prime Minister.
9. On 8 February 2021, Ms Natalia Gavrilița submitted a request to the President of the Parliament requesting the vote of confidence of the Parliament on the activity program and the entire list of the Government.
10. On 11 February 2021, at approximately 10:00 am, the plenary sitting of the Parliament began, during which Ms Natalia Gavrilița presented the work program and the entire list of the Government [1].
11. On the same day, at approximately 12:00 pm, Mr Igor Dodon, President of the Party of Socialists of the Republic of Moldova, assisted by deputies from the Party of Socialists, held a press briefing in the Parliament building [2] .
During this briefing, Mr. Igor Dodon announced the Decision of the Political Executive of the Socialist Party to nominate Ms. Mariana Durleșteanu as a candidate for the position of Prime Minister.
12. On the same day, at approximately 15:50, during the plenary sitting of the Parliament, during the examination of the work program and the entire list of the Government proposed by Mrs. Natalia Gavrilița, the president of the Socialist Party faction, Mr. Corneliu Furculiță, read a Declaration on the constitution of the parliamentary majority in order to support the candidacy of Mrs. Mariana Durleșteanu for the position of Prime Minister, Declaration signed by 54 deputies.
He also announced that he would send the Declaration to the President of the Republic of Moldova.
13. On the same day, at approximately 16:00, in the plenary sitting of the Parliament for the vote of confidence, the work program and the entire list of the Government proposed by Ms Natalia Gavriliță did not meet any votes.
14. On the same day, at approximately 17:00 hours, the President of the Republic of Moldova held consultations simultaneously with all parliamentary factions [3].
15. During the consultation of the parliamentary factions, the chairman of the Socialist Party faction, Mr Corneliu Furculiță, nominated Ms Mariana Durleșteanu as a candidate for the post of Prime Minister.
16. On the same day, the President of the Republic issued Decree no. 32-IX, by which he repeatedly appointed Mrs. Natalia Gavrilița as a candidate for the position of Prime Minister.
In the evening of the same day, the President of the Republic gave a briefing, [4] in which he mentioned the following:
"Today, we had a new round of consultations with parliamentary factions and groups, as required by the Constitution. This discussion was broadcast online so that interested citizens can follow it.
Also today, in the evening, a letter came to the Presidency with a proposal for the position of Prime Minister, signed by 54 deputies. In this list I discovered the signatures of people in relation to whom there are doubts that they would have freely expressed their will. And here I am talking about people who have been subjected to the act of kidnapping, who have been held hostage, people who have been involved in the theft of the billion and deputies who have changed several political parties and several parliamentary groups. And in the case of some of these acts of political trajectory there are reasonable suspicions of corruption and external pressure.
In these conditions, I decided to nominate Mrs. Natalia Gavrilița for the position of candidate for the position of Prime Minister.”
RELEVANT LEGISLATION
17. The relevant provisions of the Constitution are the following:
Article 98
Investiture
"1. After consulting the parliamentary factions, the President of the Republic of Moldova shall nominate a candidate for the position of Prime Minister.
[...] ”
18. The relevant provisions of Decree no. 32-IX of 11 February 2021 on the nomination of the candidate for the position of Prime Minister are the following:
„Article 1. - Mrs. Natalia GAVRILIȚA is appointed as a candidate for the position of Prime Minister and is authorized to draw up the work program and the list of the Government and to present them to the Parliament for examination.
Article 2. - This decree shall enter into force on the date of signature."
IN LAW
A. ADMISSIBILITY
19. By its decision of 17 February 2021, the Court upheld the observance in the present case of the conditions for the admissibility of a referral, laid down in its settled case-law.
20. In accordance with Article 135 para. (1) lit. a) of the Constitution, the control of the constitutionality of the decrees of the President of the Republic of Moldova, in the present case of the Decree of the President no. 32-IX of 11 February 2021 on the appointment of the candidate for the position of Prime Minister, falls within the competence of the Constitutional Court.
21. According to Articles 25 letter g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction, the deputies in the Parliament have the prerogative to notify the Constitutional Court.
22. The Court noted that the object of the notification is the Decree of the President of the Republic of Moldova no. 32-IX of February 11, 2021 on the nomination of the candidate for the position of Prime Minister. The contested decree has not previously been subject to constitutional review.
23. The authors of the complaint argued that the contested decree contravenes Article 98 para. (1) of the Constitution, which provides that, after consulting the parliamentary factions, the President of the Republic of Moldova nominates a candidate for the position of Prime Minister.
24. The Court noted that the impact of Article 98 para. (1) of the Constitution may be retained when the President of the Republic nominates a candidate for the position of Prime Minister.
In this case, the Court noted that the President of the Republic issued Decree no. 32-IX of February 11, 2021 by which he appointed Mrs. Natalia Gavrilița as a candidate for the position of Prime Minister. Therefore, Article 98 para. (1) of the Constitution is incidental in this case.
In order to see whether the contested decree complies with the requirements laid down in Article 98 para. (1) of the Constitution, the Court must examine the case on the merits.
25. At the same time, the authors of the referral ask the Court to assess whether, by refusing to nominate the candidate of the parliamentary majority for the position of Prime Minister, the President of the Republic:
(i) violated the provisions of the Constitution and / or the Constitutional Court Decisions;
(ii) violated his obligation of impartiality and political neutrality in the process of nominating the candidate for the post of Prime Minister.
26. The Court notes the following on this point of reference. In Decision no. 23 of 6 August 2020, § 55, the Court noted that in order to assess whether the refusal of the President of the Republic to nominate the candidate for the post of Prime Minister, proposed by the parliamentary majority, is a serious act within the meaning of Article 89 para. (1) of the Constitution, the following elements must be taken into account:
a) if by this act the President of the Republic violates a provision of the Constitution and / or a Decision of the Constitutional Court and
b) if by this act the President of the Republic violates his obligation of political impartiality and neutrality in the process of nominating the candidate for the position of Prime Minister.
At the same time, in § 54 of that judgment, the Court held that it could assess whether an action or inaction by the President of the Republic constituted a serious act justifying his suspension from office and his dismissal provided that the referral had been made under Article 135 para. (1) lit. f) of the Constitution [finding the circumstances that justify the dismissal of the President of the Republic of Moldova].
In this case, the notification was submitted based on article 135 par. (1) lit. a) of the Constitution [control of the constitutionality of the decree of the President of the Republic of Moldova]. Therefore, this end of the complaint is inadmissible.
27. Therefore, at the stage of examining the application, the Court will examine whether the contested decree meets the requirements laid down in Article 98 para. (1) of the Constitution.
B. BOTTOM OF THE CASE
A. Arguments of the authors of the notification
28. The complainants mention that, on February 11, 2021, during the plenary session of the Parliament, Mrs. Natalia Gavrilița, candidate for the position of Prime Minister appointed by the President of the Republic, did not obtain the vote of confidence of the Parliament on the work program and the entire Government lists.
29. During the plenary session of the Parliament of the same day, the chairman of the parliamentary faction of the Party of Socialists of Moldova read the Declaration on the establishment of a parliamentary majority of 54 deputies to support the candidacy of Mariana Durleșteanu for Prime Minister.
The authors of the notification consider that the Declaration in question fulfills the condition regarding the nomination of the candidate for the position of Prime Minister by a formalized parliamentary majority, as this condition was established by the Decision of the Constitutional Court no. 32 of December 29, 2015 (point 3 letter c) of the operative part).
30. The complainants note that, after reading the above- mentioned Declaration, the president of the parliamentary faction of the Party of Socialists of Moldova notified the President of the Republic about the formalization of the parliamentary majority and proposed the appointment of Ms. Mariana Durleșteanu as a candidate for the position of Prime Minister.
On the same day, during the consultations of the parliamentary factions with the President of the Republic, the candidacy of Ms. Mariana Durleșteanu was proposed to be nominated as a candidate for the position of Prime Minister. In this sense, the authors of the notification consider that in this situation the President of the Republic was obliged to nominate the candidate submitted by the parliamentary majority.
The authors of the notification refer to § 118 of Decision no. 32 of December 29, 2015 and point 2 of the second sentence of the operative part of Decision no. 23 of August 6, 2020, in which the Court established that, when a formalized absolute parliamentary majority is constituted, the President of the Republic is obliged to nominate the candidate submitted by this majority for the position of Prime Minister.
31. According to the authors of the notification, the President of the Republic of Moldova issued Decree no. 32-IX by which he repeatedly appointed Ms. Natalia Gavrilița as a candidate for the position of Prime Minister.
The authors of the notification consider that by this fact the President of the Republic ignored the will of the parliamentary majority and violated the provisions of article 98 par. (1) of the Constitution and the Decisions of the Constitutional Court no. 32 of December 29, 2015 and no. 23 of August 6, 2020.
B. Arguments of the authorities
32. In the opinion presented by the President of the Republic of Moldova it is mentioned that the provisions of article 98 par. (1) of the Constitution imposes on the President of the Republic only one condition at the stage of appointing the candidate for the position of Prime Minister, namely the obligation to consult the parliamentary political parties.
There is no conditionality to appoint as Prime Minister the person supported by an absolute and formalized parliamentary majority, this being a personal and exclusive attribution of the head of state, not shared with any public authority.
The President claims that the Decision of the Constitutional Court no. 32 of December 29, 2015 was adopted at a time when the state was being captured by an oligarchic regime controlled by Vladimir Plahotniuc.
Allowing a short-term parliamentary majority, in which there are people with serious integrity problems, to nominate a candidate for the position of Prime Minister would pose an enormous risk for the recapture of the state by oligarchic groups. Moreover, the recitals in the preamble to that judgment are based on an interpretation in which the President was elected by Parliament, but now the President is directly elected by the people.
Therefore, the annulment of the President's prerogative to nominate the candidate for the position of Prime Minister to the detriment of a situational majority is contrary to Article 2 para. (1) of the Constitution, according to which the national sovereignty belongs to the people of the Republic of Moldova, which exercises it directly and through its representative bodies, in the forms established by the Constitution.
Also, even if the jurisprudence of the mentioned Constitutional Court does not result from the text of the Constitution, the contested Decree does not contradict this jurisprudence either with the condition of some nuances.
Therefore, the investment of a Government only in order to avoid the dissolution of the Parliament without the intention to support it later cannot be tolerated by the Constitution, because this fact would further disturb the state of uncertainty of the executive and the development of the state.
Thus, the President must ensure that, when parliamentary factions nominate the Prime Minister, they are not just aiming to avoid early elections.
In this regard, the President of the Republic proposes three conditions that must be met cumulatively:
(i) the existence of a parliamentary majority with the intention of supporting a Government;
(ii) the capacity of this majority to ensure a government in the interest of the people and
(iii) the eligibility of the candidate proposed for the position of Prime Minister within the meaning of the Decision of the Constitutional Court no. 4 of April 22, 2013.
Relating these conditions to the present situation, the Declaration signed by 54 deputies does not mention anything about the commitment to support the Government proposed by them after the investment, and the establishment of a Transitional Government cannot be a valid reason for investment.
Moreover, the text of the Declaration is not an official document of an absolute and formalized parliamentary majority, but only a list of the majority of elected Members on the common position on the submission of a candidate.
With regard to the second condition, the investiture of a Government with the decisive support of deputies involved in criminal cases, involved in the theft of the billion, in respect of which serious suspicions of corruption are planned, and even of a deputy who has been abducted and taken hostage is not acceptable in principle.
Regarding the eligibility of the proposed candidate for Prime Minister, the President mentions that there are reasonable doubts about the proposed candidate, Ms. Mariana Durleșteanu, given that she was sanctioned by the National Bank of Moldova while she was a member of the Board of Directors. to Moldindcombank. Moreover, Ms. Mariana Durleșteanu held the position mentioned during the period of money laundering through the well-known "Russian laundromat".
Finally, in the opinion presented, it is argued that there was no formalized absolute parliamentary majority, public consultations with parliamentary factions were ensured, and the President of the Republic of Moldova complied with the Constitution.
33. In the opinion presented by the Parliament it is mentioned that article 98 par. (1) of the Constitution obliges the President of the Republic of Moldova to consult the parliamentary factions for the nomination of a candidate for the position of Prime Minister.
In this case, the President of the Republic of Moldova, contrary to the constitutional provisions, did not act with the utmost diligence in carrying out his constitutional duties for the investment of the new Government.
The President promotes the solution of declaring early parliamentary elections. Also, the subsequent actions of the President of the Republic of Moldova by not respecting the will of the formalized parliamentary majority vitiate the entire procedure of investiture of the Government, being contrary to the provisions of the Constitution and the Decisions of the Constitutional Court.
Parliament emphasizes that the legal conflict of a constitutional nature, artificially generated by the exercise, at its discretion, of the attributions of President, consists in the repeated submission of the same candidate for the position of Prime Minister. Parliament also claims that the consultations organized by the President of the Republic were formal, with no intention of promoting a candidate who obtained the majority of votes.
The President of the Republic ignored the statement of the formalized parliamentary majority and, implicitly, of the legislative authority.
Therefore, the President acted contrary to the constitutional principle of loyal cooperation between public institutions. At the same time, contrary to article 98 par. (1) of the Constitution, the President has repeatedly nominated the same candidate for the position of Prime Minister. The nomination of the same candidate appears as an act of provocative unilateral will, positioned outside the relations of separation and balance of state powers.
The nomination of a candidate without taking into account the opinion of parliamentary parties is limited to unfair conduct. The President nominated the same candidate only for the purpose of dissolving Parliament.
Therefore, by neglecting the will of the Parliament, where a parliamentary majority was formalized, by rejecting the proposal of this parliamentary majority and repeatedly submitting the same candidate, the President of the Republic did not exercise his duties according to the constitutional provisions.
The President of the Republic violated the obligation of impartiality and political neutrality in the process of nominating a candidate for the post of Prime Minister. Therefore, the President has abusively and discretionarily fulfilled the prerogatives provided by article 98 par.
34. The opinion presented by the Institute for Legal, Political and Sociological Research states that the President of the Republic of Moldova was not obliged to nominate the candidate proposed by the 54 deputies, because there was no formalized absolute parliamentary majority.
Thus, for the existence of such a majority, it was necessary that prior to the nomination of the candidate for Prime Minister, the formalization of the parliamentary majority should take place. According to article 4 par. (12) of Parliament's Rules of Procedure, the parliamentary majority is considered to be the faction or coalition of factions, announced by a declaration, which comprises more than half of the elected Members.
From the text of the letter of the 54 deputies by which the candidacy of Mrs. Mariana Durleșteanu for the position of Prime Minister is submitted, it follows that there was no such statement prior to this letter.
The Institute mentions that the President of the Republic is elected by the citizens and, from a legal point of view, he is in the same position with the Parliament, having wider prerogatives, due to the fact that his mandate comes from the people.
At the same time, the Court will have to review the limits of the discretion of the President of the Republic to assess the qualities, competence, experience and, in fact, the capacity of a person, politically involved or not, to lead the Government and attract the political support of the parliamentary majority. the one to refuse arguably the nomination of the candidate for the position of Prime Minister.
35. The Court received three amicus curiae opinions from Mr. Alexandru Arseni, doctor habilitat in law, professor at the Faculty of Law of the State University of Moldova, from Mr. Ion Guceac, academician, professor at the Faculty of Law State University of Moldova, and the Institute for European Policies and Reforms.
36. In the opinion presented to the Court, Mr. Alexandru Arseni mentions that the consultation of the parliamentary factions is of an imperative character, the President of the Republic being obliged to consult all the fractions declared and registered regularly. During the consultations, several candidacies for the position of Prime Minister may be submitted.
However, the President of the Republic has the discretionary right to nominate only one candidate for this position. The President of the country has the right to select the candidacy, and the consultation of the parliamentary factions does not oblige him to comply with the visions of these factions. The President of the Republic is free to choose the candidate.
In the case of pluralist political systems, the parliamentary majority forms a coalition of factions, announced in a declaration, comprising more than half of the Members. The decision to create the coalition and the respective minutes shall be declared in the plenary session of the Parliament and shall be transmitted to the President of the Republic.
Thus, the coalition assumes full responsibility for the governing act. The parliamentary majority is not a list ad-hoc support for a candidate for the post of Prime Minister, a list that does not produce legal effects. Therefore, Mr. Alexandru Arseni considers that the Decree of the President of the Republic no. 32-IX of 11 February 2020 on the appointment of the candidate for the position of Prime Minister corresponds to the provisions of article 98 par. (1) of the Constitution.
37. In the opinion presented by Mr. Ion Guceac, it is mentioned that the Constitution qualifies the Parliament as the supreme representative body of the people (article 60 of the Constitution).
Also, the President of the Republic of Moldova represents the people and acts on their behalf. The representative character of the President results from the will expressed by the electoral body. Therefore, the Parliament and the President of the Republic enjoy equal democratic legitimacy from the elections.
The Constitution grants the President of the Republic the prerogative to nominate the candidate for the position of Prime Minister, after consulting the parliamentary factions (Article 98 paragraph (1) of the Constitution).
These provisions, which constitute the foundation of power in a state governed by the rule of law, also foreshadow the need to consult parliamentary factions before the nomination of the candidate for the post of Prime Minister.
From the content of article 98 par. (1) of the Constitution in conjunction with other norms regarding the head of state results that the identification of the candidate for the position of Prime Minister belongs to the latitude of the President of the Republic.
The Constitution does not limit this right, including to repeatedly propose the same candidate or to nominate, each time, a new candidate.
The Parliament participates in the investiture of the Government, with the vote of the majority of the elected deputies, or in the rejection of the respective request.
Also, the Constitution does not provide restrictions in the exercise of the attributions of the participants in the process.
In these circumstances, Article 98 of the Constitution does not establish the circumstances in which a certain parliamentary majority would nominate a candidate for this position or whether the procedure for consulting parliamentary factions involves listening to these factions, asking questions, researching the political vector, so that the President be able to decide on the candidate according to a certain political, social and economic context of the state.
Therefore, the prerogative of appointing a candidate for the post of Prime Minister is rather discretionary and belongs exclusively to the President of the Republic. The President of the Republic has the constitutional obligation to nominate a candidate for the position of Prime Minister who meets the legal and integrity conditions.
The President does not impose the candidate on Parliament, but proposes an option as to who could hold this position.
It is up to Parliament to decide whether or not to vote in favor.
Therefore, the parliamentary majority is important not so much in the nomination of the candidate for the position of Prime Minister, but in the debate of the work program and the list of the Government.
In the process of interpreting the Constitution by Decision no. 32 of December 29, 2015, a different mechanism was generated than the one enshrined in the Constitution.
It is therefore not excluded that the Court's assessments of the judgments previously adopted may be reassessed.
38. In the opinion presented to the Court by the Institute for European Policies and Reforms, it is mentioned that the Parliament and the President of the Republic participate in the investiture procedure of the Government, through a joint exercise, having distinct functions. The president of the country is obliged by the Constitution to consult the parliamentary factions and to nominate a candidate.
After obtaining the vote of confidence, the President appoints the Government. Parliament participates in consultations with the President of the Republic and may nominate a candidate for the post of Prime Minister.
After the nomination of the candidate by the President, Parliament must examine the composition of the Government in sitting and vote.
This procedure involves the Parliament and the President of the Republic.
The Constitution also provides for a series of consequences for non-compliance by the Parliament and the President of the Republic with the obligations provided by the Constitution.
The Institute for European Policy and Reforms argues that the procedure for forming the Government involves a co-decision, in which the President of the Republic and the Parliament are called upon to reach a consensus on the candidate for the post of Prime Minister and to form the Government.
The prerogative of the President of the country to nominate the candidate for the position of Prime Minister can be sanctioned by the Parliament by not expressing the vote of confidence for the proposed candidate.
At the same time, the lack of consensus from the Parliament on the candidacy proposed by the President of the Republic may lead to the dissolution of the Parliament.
The Institute also mentions that the Judgement of the Constitutional Court no. 32 of December 29, 2015 was adopted taking into account the constitutional norm according to which the President of the Republic was elected by the Parliament, and the Judgement of the Court no. 23 of August 6, 2020 was based on Decision no. 32/2015.
However, the direct elections of the President of the Republic, which consolidates his position as guarantor of sovereignty, ensure the President a position of co-decision with the Parliament, in the procedure of investing the Government.
Therefore, the Institute for European Policies and Reforms considers it appropriate to review the jurisprudence of the Constitutional Court.
In case of maintaining the current interpretations of article 98 par. (1) of the Constitution, the balance of competence is in favor of the Parliament and the essence of the co-decision procedure is not exploited.
C. Findings of the Court
General principles
39. The Court notes that it established in Judgment no. 32 of December 29, 2015 general principles applicable to the nomination of the candidate for the position of Prime Minister.
40. Thus, in the cited Judgment, the Court held that Article 98 para. (1) of the Constitution provides for the exclusive attribution of the President of the Republic to nominate a candidate for the position of Prime Minister.
At the same time, the Court noted that, although exclusive, the appointment could not be discretionary, as the President would nominate a candidate for the post of Prime Minister only after consulting the parliamentary factions.
The Court noted that the Parliament's vote is essential in the procedure of forming and investing the Government. The Government will be politically accountable only to Parliament, which can dismiss it.
The principle from which to start in democratic states, regardless of the form of government, is that the Government must express the will of the political majority in Parliament, and in order to govern, it must benefit from the support of this parliamentary majority.
Analyzing the role of each of the two public authorities in the procedure of forming the Government, the Court concluded that the role of the Parliament is a decisive one in relation to the role of the President of the Republic.
This difference in weight is due to the form of parliamentary governance (see §§ 58, 84, 88 and 89 of the judgment cited). Moreover, the Court held that, in accordance with the provisions of Article 60 para. (1) of the Constitution, the Parliament is the supreme representative body of the people of the Republic of Moldova (see JCC no. 23 of 6 August 2020, § 17).
41. In the same Decision no. 32 of December 29, 2015, the Court interpreted the meaning of the phrase “consultation of parliamentary factions” in Article 98 para. (1) of the Constitution and noted that the purpose of consultations is to identify the political support of Members for a particular person, capable of forming a Government that enjoys the confidence of Parliament.
What matters in these consultations is obtaining political support for the person who could be nominated as a candidate for the post of Prime Minister. The Court also noted that the President of the Republic may come to consultations with his own proposal, which could be accepted.
However, it is equally possible that in these political consultations the candidate proposed by the President for the position of Prime Minister will not be approved by the consultation partners. In this regard, the Court noted that the President of the country cannot subordinate the political dialogue partners he consults.
In this role, the President of the Republic acts only as a representative of the state, which has the right and responsibility to find a way of dialogue and to assess the will and capacity of the deputies consulted to support a candidate in Parliament.
In appointing the candidate for the post of Prime Minister, the President of the Republic must demonstrate his impartiality and political neutrality, his equidistance from all parliamentary factions.
The President has no constitutional right to replace parliamentary factions (see §§ 91-94 of the judgment cited; JCC no. 23 of 6 August 2020, § 18).
42. At the same time, the Court noted that the President of the Republic cannot be denied the right to assess the qualities, competence, experience and, in essence, the capacity of a person, politically involved or not, to lead the Government and attract the political support of the majority which will support him throughout the legislature.
However, he cannot impose his own candidate.
Thus, the President intervenes exclusively as a representative of the state, in order to establish and formalize through the significance and solemnity of his function and to maintain with the authority of his power the balance between the Parliament and a possible future Government.
The Court stressed that the interpretation of the Constitution, in the sense of the existence of a discretionary right of the President of the country to nominate the candidate for the post of Prime Minister, may lead to institutional conflicts (see JCC No. 32 of December 29, 2015, §§ 95 and 117; JCC No. 23 of August 6, 2020, § 19).
43. The Court noted that there is no constitutional and democratic reason why the President of the Republic should not nominate as a candidate for the post of Prime Minister the person who has the support of the formalized parliamentary majority, even if he is opposed to the President.
When no party has an absolute majority in Parliament, the President of the country must consult deputies not only pro forma, but to nominate the candidate supported by the majority, even if the party approved by the President is not part of the majority.
The President of the Republic nominates for the position of Prime Minister the candidate who meets the conditions for appointment and appointment and who enjoys the support of the parliamentary majority (see JCC no. 32 of December 29, 2015, §§ 118-120; HCC no. 23 of 6 August 2020, § 20).
44. The President of the country should act as an authority that ascertains, but does not interpret or modify the result of the elections, being constrained, by Article 98 para. (1) of the Constitution, to nominate a candidate for the position of Prime Minister according to the will expressed by voters in parliamentary elections, to nominate the person proposed by the party or coalition that won the absolute majority of parliamentary seats.
A contrary interpretation of the provisions of the Constitution would lead the citizens to the idea that they do not in reality exercise their national sovereignty, that their vote does not matter, that the result of the elections can be denied by the President of the country.
When the change of Government takes place after a period of elections and the balance of political forces has changed, the President of the Republic must resume the exercise of consultations with parliamentary factions in order to identify a majority capable of supporting the Government's investment (see JCC no. 32 of December 29, 2015, §§ 122-124; HCC No. 23 of August 6, 2020, § 21).
45. The Court noted that this solution is the only one capable of eliminating, at least in this respect, the risk of institutional conflict, being a natural act of clarifying the attributions of the President of the Republic regarding the appointment of the Prime Minister, provided that Parliament's supremacy is ensured, fundamental institution of democracy.
In case of the establishment of an absolute formalized parliamentary majority, the President of the Republic is to nominate the candidate supported by this majority.
Following these reasonings, only the person proposed by the party or coalition holding the parliamentary majority, even if the person is: an independent, the leader of a smaller party, the leader of a larger party, etc., should be nominated as a candidate for the post of Prime Minister, regardless of whether the person comes from the party with the largest number of parliamentarians (if the party with the largest number of parliamentarians does not hold an absolute majority in Parliament).
Only in the absence of a formalized absolute parliamentary majority does the President of the country have the obligation, after consulting the parliamentary factions, to nominate a candidate for the position of Prime Minister, even if the parliamentary factions do not agree with the President's proposal. see JCC No. 32 of 29 December 2015, §§ 116, 125, 130 and 131; JCC No. 23 of 6 August 2020, § 22).
46. The Court concluded that the exercise in this way of the attribution of the President of the Republic regarding the nomination of the candidate for the position of Prime Minister, regulated by article 98 par. (1) of the Constitution, is likely to maintain the relations between the Parliament and the President in the balance imposed by the Constitution for the parliamentary republic.
The Court considered that this is the reason for the interaction of the Parliament with the President of the Republic, which is deduced from Article 98 of the Constitution, both authorities contributing, through a gear of political actions, to the formation of the future governing team.
Parliament acts according to genuine political criteria, which indirectly expresses the consent of citizens to form a Government led by a future Prime Minister who enjoys the trust and support of a parliamentary majority (see JCC No. 32 of December 29, 2015, § 132; HCC No. 23 of August 6, 2020, § 23).
47. The Court noted that the method of electing the President of the Republic ( by universal, equal, direct, secret and free vote or by Parliament ) does not in any way influence the manner in which the head of state exercises his powers under Article 98 para. . (1) of the Constitution (JCC no. 23 of 6 August 2020, § 24).
48. Also, in Decision no. 23 of August 6, 2020, the Court noted that the discretion of the President of the Republic to nominate a candidate for the post of Prime Minister is limited.
If a formalized absolute parliamentary majority is constituted, the President of the Republic is obliged to nominate the candidate nominated by this majority for the position of Prime Minister.
If no formalized absolute parliamentary majority is constituted, the President of the Republic is obliged, after consulting the parliamentary factions, to nominate a candidate for the post of Prime Minister, even if the parliamentary factions do not agree with his proposal (see point 2 of the operative part).
Application of the principles in the present case
49. As a preliminary point, the Court reiterates that the interpretation given to the constitutional provisions is of a formal and binding nature for all subjects of legal relations. The Judgements interpreting a constitutional text has the force of the Constitution and is binding, including its considerations, for all authorities of the Republic of Moldova.
It applies directly, without any other form condition (see JCC No. 33 of 10 October 2013, § 47; JCC No. 2 of 20 January 2015, § 143; DCC No. 4 of 26 February 2016, § 13; DCC No. 51 of 6 June 2017, § 26).
Observance of the decisions of the Constitutional Court is a necessary and essential condition for the proper functioning of public authorities and for the affirmation of the rule of law (see JCC no. 33 of 10 October 2013, § 52; JCC no. 26 of 11 November 2014, § 72 ).
50. In order to determine whether the contested decree complies with the requirements laid down in Article 98 para. (1) of the Constitution, as it has been interpreted in the constitutional jurisprudence, the Court must verify:
a) whether the candidate for the position of Prime Minister has been nominated by a formalized absolute parliamentary majority;
b) if the President of the Republic has nominated the candidate for the position of Prime Minister submitted by the formalized absolute parliamentary majority.
a) If the candidate for the position of Prime Minister has been nominated by a formalized absolute parliamentary majority
51. The Court notes that Article 98 para. (1) of the Constitution stipulates that, after consulting the parliamentary factions, the President of the Republic of Moldova nominates a candidate for the position of Prime Minister.
In Judgement no. 32 of December 29, 2015, the Court interpreted the mentioned article and held that the President of the Republic is obliged to nominate as a candidate for the position of Prime Minister the candidate who was proposed by an absolute formalized parliamentary majority (see paragraph 3 letter. a), b) and c) of the device).
In § 114 of the judgment cited, the Court emphasized that the phrase "parliamentary majority" means the absolute majority of the members elected to Parliament, which, based on the constitutional provisions, can give a vote of confidence to the Government, i.e. at least 51 deputies.
Also, in § 128 and point 3 let. c) from the operative part of the cited judgement, the Court held that the parliamentary majority must be formalized, not only declared, specifying the deputies who constitute it, specifying the availability to support a certain candidacy for Prime Minister and officially notifying the President of the Republic Moldova.
52. At the same time, the Court notes that the condition of formalizing the absolute parliamentary majority proposing the candidate for Prime Minister must not be interpreted in accordance with the provisions of the unconstitutional acts, for example, in accordance with Parliament's Rules of Procedure.
From point 3 letter c) of the operative part of the Judgement of the Constitutional Court no. 32 of December 29, 2015, it is explicit that this condition is met if:
(i) the act certifying the formalization of the parliamentary majority contains data on the number and concrete deputies who constitute the absolute parliamentary majority ;
(ii) the act reflects the willingness of Members to support a particular candidacy for the post of Prime Minister ;
(iii)the act is officially communicated to the President of the Republic of Moldova .
53. In this case, the Court notes that on 11 February 2021, 54 Members signed a declaration establishing a parliamentary majority in support of Ms Mariana Durleșteanu as a candidate for the post of Prime Minister.
The statement in question was also read in the plenary sitting of the Parliament and communicated to the President of the Republic. Therefore, in view of the above, the Court notes that the condition for the nomination of the candidate for Prime Minister by a formalized absolute parliamentary majority is met.
b) If the President of the Republic has nominated the candidate for the position of Prime Minister submitted by the formalized absolute parliamentary majority
54. In order to fulfill that condition, the President of the Republic is required to issue a decree appointing the candidate for Prime Minister by a formalized parliamentary majority (see JCC No 23 of 6 August 2020, paragraph 2 of the operative part).
55. In this case, the Court notes that on 11 February 2021, following the communication of the Declaration on the establishment of a parliamentary majority in support of Ms. Mariana Durleșteanu as a candidate for Prime Minister, the President of the Republic consulted the parliamentary factions and issued Decree no. . 32-IX, by which he nominated Mrs. Natalia Gavrilița as a candidate for the position of Prime Minister.
56. In its case law, the Court has held that the President of the Republic can assess the qualities, competence, experience and, in essence, the ability of the candidate proposed by the parliamentary majority to lead the Government and attract the political support of the parliamentary majority (see JCC no. 32 of 29 December 2015, § 95; JCC No. 23 of 6 August 2020, § 19).
In this case, the President of the Republic, at the issuance of Decree no. 32-IX of February 11, 2021, did not contest the personal and professional qualities of the candidate proposed by the parliamentary majority. The objections of the President of the Republic were addressed to the Members who supported the candidate for Prime Minister (see § 16 above).
57. Thus, by the fact that the candidate for the position of Prime Minister was not nominated by the formalized absolute parliamentary majority, the contested decree contravenes Article 98 para. (1) of the Constitution, as interpreted in the case law of the Court.
58. At the same time, the Court notes the deficient nature of the cooperation between the President of the Republic and the Parliament in the second round of consultations on the nomination of the candidate for the post of Prime Minister (see §§ 11-16 above).
59. The Court reiterates that the purpose of the consultation is to identify the political support of a formalized parliamentary majority for a person capable of forming a Government which enjoys the confidence of Parliament (see § 41 above ).
60. The consultation resulting from the constitutional norm of Article 98 para. (1) is an authentic dialogue undertaken by the parties, which must be conducted in good faith, in a sincere and responsible manner, so as to achieve the above-mentioned purpose.
Such a dialogue must be objectively based on the decision of the President of the Republic to nominate the candidate for the post of Prime Minister. In this case, consultation is a legal instrument provided for in the Constitution, which cannot be ineffective (see, mutatis mutandis , JCC no. 7 of 18 May 2013, § 50).
61. The Court mentions the following consideration in the preamble to the Venice Commission:
'The respect of the principle of the rule of law cannot be limited to the implementation of the explicit and formal provisions of the law and the Constitution. Respect for the rule of law also implies constitutional behavior and practices that facilitate compliance with formal rules by all constitutional bodies and mutual respect between them” (see Venice Opinion of the Commission No. 685/2012 of 17 December 2012 , CDL-AD (2012) 026, § 72).
62. In examining this case, the Court concluded that in order to nominate the candidate for Prime Minister, it is necessary to draw attention to the desire to develop the political culture of representatives of state authorities, including those tasked with participating in consultations.
In this respect, the conclusions of the Venice Commission are relevant according to which
“[...] political and constitutional cultures must be developed.
Dignitaries do not always pursue the interests of the state as a whole. […] Institutions cannot be viewed separately from the people who run them. [...]
A lack of respect for institutions is closely linked to another problem in political and constitutional culture, namely the violation of the principle of loyal cooperation between institutions. [...]
Only mutual respect can lead to the establishment of mutually accepted practices, which are in line with the European constitutional heritage and which allow a state to avoid and overcome crises with serenity" (see Commission Opinion No 685/2012, CDL-AD (2012) 026, § 73).
63. Therefore, the President of the Republic of Moldova and the Members of Parliament must show loyal constitutional conduct and show mutual respect in order to ensure essential cooperation in the process of investing a Government and, implicitly, in the proper functioning of the state.
64. Thus, in order to avoid an institutional deadlock caused by the lack of a dialogue based on respect and diligence between the President of the Republic and Parliament, the Court considers it necessary for the parties to resort to new consultations, respecting the Constitution and complying with the case law .
For these reasons, based on articles 135 par. (1) letters a) and 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 letters a) and 68 of the Code of Constitutional Jurisdiction, the Constitutional Court
DECIDES :
1 . The complaint filed by Vasile Bolea, Grigore Novac and Alexandr Suhodolski, members of the Parliament of the Republic of Moldova, is partially admitted.
2. The Decree of the President of the Republic of Moldova no. 32-IX of February 11, 2021 on the nomination of the candidate for the position of Prime Minister is unconstitutional.
3. In order to comply with article 98 par. (1) of the Constitution, the parliamentary factions and the President of the Republic of Moldova must resort to new consultations.
4. The referral in the part referring to the request of the authors of the referral to assess whether by refusing to nominate Ms. Mariana Durleșteanu as a candidate proposed by the parliamentary majority for the position of Prime Minister the President of the Republic of Moldova has committed a serious act within the meaning of the article 89 para. (1) of the Constitution.
5. This decision is final, may not 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.
President Domnica MANOLE
Chisinau, February 23, 2021
HCC no. 6
File no. 30a / 2021DECISION