Adventure of presidential institution in Moldova
18:12 | 29.09.2021
Category: REPUBLIC OF MOLDOVA: THREE DECADES OF INDEPENDENCE.
Retrospective of events
Without any experience as state, Moldova edified its institutions more intuitively, boldly copying institutional forms, some of them successful, but most often naïve and non-functional. The most difficult and incoherent was the building of the presidential institution.
In 1990, immediately after the first parliamentary elections, there was no even the idea of president. If one reads the electoral programmes of the candidates for the first parliament, he/she can find concepts about the future parliament, government, justice; yet, nothing about the presidency. Let us not forget that, at that time, there was the norm in the Constitution about the leading role of the communist party, which still nobody cancelled in the Soviet space and annihilated any allusion to the separation of powers.
After the first democratic parliament and government were established in the spring of 1990 and the leading role of the communist party was removed, the issue on the establishment of the office of Moldova’s president started to be brought for discussion more and more often. A parliamentary commission was even set up, which was to work out a draft law on the establishment of the position of president and the way of his/her election. Yet, following the adoption of the Declaration on Sovereignty, the parliamentary summer vacation began and this subject was postponed.
Meanwhile, the events were escaping control and the actions of the Transnistrian and Gagauz separatists became more and more dangerous. Outspokenly backed by Moscow, the separatists were creating parallel structures of power and were declaring their intention to participate in the signing of the new Union treaty as independent entities. Police stations were opened on the left bank of Dniester, Moldova’s supporters were persecuted and the state flag was banned. Later on, a letter by the coordinator of the breakaway movements, president of the Supreme Soviet of the USSR, Anatoly Lukyanov, was discovered, who insisted to Gorbachev that the so-called Transnistrian and Gagauz republics take part in the signing of the new Union treaty.
Proceeding from this dramatic situation, the parliament convened at an extraordinary session on 2 September 1990. Parliament Speaker Mircea Snegur gave a quite emotional speech, but which correlated with the tension which appeared in Moldova. He referred in detail to the situation, harshly accusing Moscow and called for emergency measures. The discussion on the report lasted two days and in the end, more speakers suggested the urgent establishment of the office of president.
A draft which provided for the establishment of the office of Moldova’s president, elected with the votes of most MPs, was put to vote by the end of the day. All those 265 MPs present in the session hall unanimously voted for the single candidacy. Thus, Mircea Snegur became the first president of Moldova.
The presidential institution was created without clearly defining the duties, without the integration in the fragile balance of powers and, frankly speaking, at that moment, we could not discuss about what republic we are: parliamentary or presidential. A decision taken in haste, in crisis situation, was adopted again.
Mircea Snegur was the supporter of a presidential republic with wide prerogatives for the head of state. He had two reasons. The first one consisted in the seriousness of the situation in Moldova and the need to take quick and energetic measures. The second one, in his opinion, there were two strong competitors with whom he was in a permanent conflict at distance: Mircea Druc and Petru Lucinschi. Thus, after the coup d’etat from August 1991, the Declaration of Independence and collapse of the USSR, Snegur overdid it and demanded the election of the country’s president by general voting.
On 18 September, following contradictory discussions in parliament, the elections of the president by general voting were established for 8 December. A presidential campaign which had three candidates in the beginning followed in Moldova for the first time ever. Yet, shortly after the start of the campaign, the Communist leader Grigore Eremei and writer Gheorghe Malarciuc withdrew their candidacies and Snegur remained single on the list. In the end, 98.18 per cent of the 83.96 per cent of the electors who participated in the ballot voted for Mircea Snegur. Moldova became presidential republic with a head of state with quite approximate powers and with an unbalance between the three powers. Snegur had right to put forward a prime minister to parliament, lead the cabinet meetings, was in charge of the state’s security and became also the Supreme Commander of the Armed Forces.
Petru Lucinschi comfortably won the next presidential elections from 1996. Shortly after the swearing in office of the head of state, Lucinschi started the message on the need to change the Constitution in favour of turning Moldova into a presidential republic, which anyway had clear-cut signs of such a system. The amendments proposed by the presidential team were tough and were diminishing a lot the parliament’s prerogatives. Practically, a gross unbalance between the executive and the legislative powers appeared.
Such an approach triggered a vehement opposition of the parliamentary parties. Except for a group of lawmakers loyal to the president, everybody started a furious campaign against the idea by the head of state. A public discussion started, which exceeded much the legal framework and which turned into a quite tough political struggle and lacking constitutional arguments. Both camps worked one draft on amendment to the Constitution each and submitted them to the Venice Commission.
Following a detailed and attentive consideration of the draft, the president of the Parliamentary Assembly of the Council of Europe proposed to set up a joint committee due to elaborate a single text on the revision of the Constitution. This text was actually the revision which was carried through in the parliament. Thus, starting from the 2000 year, the Moldovan president was elected with a majority of three fifths of the lawmakers. Subsequently, till 2016, the Constitution Court of Moldova had no observation on the constitutionality of this decision.
This way of election of the country’s president had a single handicap for Moldova. With certain exceptions, dealing with the governance of the communists of two mandates (2001-2009), the parliamentary elections did not result in the creation of qualified majorities. Thus, to overcome the political crises, the mechanism of snap elections was enforced. This happened in 2011, 2009 and 2010. Yet, this practice has an international echo and is regarded as a natural democratic exercise.
In 2016, certain political forces had the interest to repeatedly amend the Constitution and return to the election of the head of state by general voting. This time, the Constitutional Court proved an unprecedented servility.
International experts believed that, in this case, Moldova’s Constitutional Court should have rejected this initiative as inadmissible, as the amendment from 2000 observed all constitutional rigours. If it was needed to amend the Constitution, this was exclusively within the competence of the parliament, the only legislative authority. Confused in their efforts to fulfill the goal at any price, the Court declared with a self-assurance specific to politicians that ‘’the notes by the Court on the amendment of the Constitution are not mere formalities, but have the goal to protect the fundamental values of the Constitution from the abusive practices of the political, social and institutional actors.’’ Thus, the Court established a bad faith assumption, which can be enforced at any time, which glaringly runs counter the constitutional norms. The Court easily included in the abusive practices also the legitimate mechanism of parliament’s dissolution in the case of impossibility to elect the head of state.
Further on, the Court boldly used journalistic notions, which, as a rule, are not contained in documents of this kind. ‘’The normal work of the presidency’’, as if there is also an abnormal work. Or ‘’imperfect governing system,’’ as if there are perfect ones. These samples showed certain literary attitudes of the Court members, as well as a proof of the inability to hide the intentions in contradiction with the constitutionalism.
In this amateurish way of interpreting the constitutional norms, the Court ordered ‘’the revival’’ of the law on the way of the president’s election. It was right, from the legal viewpoint, for the parliament to adopt a law on the way the president is elected and not at all for the Court to assume the ‘’revival,’’ introducing a new legal term and creating a precedent in the European practice, when a law entered into force the second time, after 16 years. With much boldness and unjustified celerity, the Constitutional Court replaced the parliament, re-wrote the Supreme Law and normative acts and laws. Everything was made primitively and contrary to the Constitution’s provisions. Even if the Constitutional Court’s ruling was running counter the note by the Venice Commission, the weak political parties swallowed this mockery against the Constitution.
A semi-presidential system, with a head of state elected by general voting, seems to be the best solution for Moldova. The presidential elections from 2016 and 2020, with all its gaps, proved that this system is widely backed among the residents. The Constitution really should have been changed, yet not in the fully defective way practiced by the Constitutional Court in 2016. The repeated patching of the Fundamental Law and the lack of respect for its provisions give birth to a natural question if we need a new Constitution which is to be backed by the citizens at a referendum. In such a case, we will be able to speak about an authentic Social Contract between the citizens and the state and the respect for the Fundamental Law will become a doubtless value.