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DECLARATION
15.06.2019

 

 

 

 

 

11 June 2019

Link: http://uam.md/index.php?pag=news&id=875&rid=1987&l=ro

The Council of the Moldovan Bar Association, being aware of the risks and divergences that currently hover within the society.

Excluding and detaching from any interference in political struggles, manifesting its faith and hope in the civilized settlement of the emerging divergences.

As a representative and deliberative body of all the lawyers in the country, expresses its public position on the political and institutional crisis in the Republic of Moldova, generated, on one hand, by the decisions taken by the President of the country and the representatives of the legislative forum, and on the other hand, by the solutions adopted by the Constitutional Court of the Republic of Moldova on 8 and 9 June 2019, both in the context of the reactions expressed in the society and of those publicly expressed by certain international institutions and organizations, urging first of all, the actors involved in making important decisions for Moldovan citizens, to dialogue and strict observance of the provisions of the Constitution.

Without making any comments on the political crisis of the country, as well as without expressing the meaning of the Constitution norms, the interpretation of which is in the exclusive jurisdiction of the Constitutional Court.

Nevertheless, the Council of the Moldovan Bar Association expresses its concern about the decisions adopted by the constitutional jurisdiction authority because, while being a guarantor of the Constitution’s supremacy, it did not ensure the fulfilment of the principle of the separation and proper functioning of the state powers, showing lack of independence in the decision-making process.

The Council of the Moldovan Bar Association is considering obliged to express its opinion regarding the legal situation created as a result of the delivery of the latest Decisions of the Constitutional Court, which led to the establishment of a dualism of power and, consequently, of a crisis which is affecting and is extrapolating the whole society, due to the ambiguous interpretation of the constitutional norms, which in the light of the previous Court's rulings, No. 30 dated 01.10.2013 and No. 29 dated 24.11.2015 for the interpretation of Article 85 of the Constitution of the Republic of Moldova, were sufficiently clear to find it necessary to come back to the interpretation of the meaning and the manner of its application.

Analyzing the arguments raised by the High Court in the reasoning of the Decision No. 83 dated 07.06.2019 on the inadmissibility of the notification of the President of the Republic of Moldova Igor DODON, No. 102b / 2019, on the interpretation of the provisions of Article 85 para. (1) in conjunction with Articles 63 paras (2) and (3), 69 para. (2) and 103 of the Constitution, the Council of the MBA finds an extension of the object of interpretation, the Court referring to the manner of running and calculating the terms which are regulated by the organic law and, accordingly, does not make the object of the Court's interpretation.

The Council of the Moldovan Bar Association considers that the inclusion of the wording “(90 days)” in the text of para. 16 of the Decision No. 83 should be justified by the Court under the observance of the provisions of Articles 384, 385, 388 and 389 of the Civil Code, provided that, according to the provisions of Article 72 para. (2) of the Law no. 100/2018 on the normative acts, the official interpretation of the laws, other than the Constitutional ones, is in the exclusive jurisdiction of the Parliament.

The Constitution of the Republic of Moldova sets the terms in: years, months, weeks, days and hours. The constituent legislator in Article 85 para. (1) of the Constitution operates with the term of 3 months, and para. (2) provides a period of 45 days. Therefore, the term indicated in months is calculated in months and not in days.

Hence, because the High Court maintains its jurisprudence consistent, enounced in the Judgment No. 30/2013, the 3-month period expired on 9 June 2019, the date after which the President of the Republic of Moldova, if there exist the circumstances or there exists one of the circumstances stated in Article 85 para. (1) of the Constitution, is obliged to dissolve the Parliament, after consulting the parliamentary fractions and issuing a confirmatory Notice by the Constitutional Court.

The 3-month term starts to run from the date of occurrence of the circumstances that determinates the possibility of the formation of a new Government / the possibility of adopting the laws by the newly constituted Parliament. Thus, a new Government can be formed only after the new Parliament has been convened by the President of the Republic of Moldova. This also concerns the possibility of adopting laws by the newly constituted Parliament.

Namely, the mandates of the members of Parliament of the 10th legislature were validated by the Constitutional Court on 9 March 2019, and the Parliament of Republic of Moldova was convened by the President of the Republic of Moldova on 21 March 2019.

Therefore, the Constitutional Court had to reconsider its position on the 3-month term, which is a general term for setting up the Government and unblocking the law-making process, which runs from the date of the occurrence of the circumstances that determined the possibility:

1) of setting up a new Government;

2) of the adoption of the laws by the newly constituted Parliament. Thus, the law must be effective, not illusory. Hence, the Parliament of the Republic of Moldova must initially be legally constituted to have the real possibility to:

  1. form the Government;
  2. adopt laws.

The 3-month term is a general term for the Government’s set-up and unblocking the procedure of adopting the laws, that is why the Constitutional Court had to reconsider its position regarding the 3-month term. Logically, the run of this term should start on 21 March 2019, and expire, respectively, on 21 June 2019.

That would be constitutional, logical and legally correct!

Additionally to the respective decision, The Council of the Moldovan Bar Association notes that the lack of well-grounded judgments of the Court taken on the applications No. 110b/2019 dated 8 June 2019 and subsequent ones (No. 112a/2019 dated 8 June 2019 and No. 113f/2019 dated 9 June 2019) create a state of uncertainty and vacuum of power, including the jurisdiction of the members of the Parliament to approach the Court, since it is apparent from the Court’s press-release that “1. The Parliament that will be dissolved under the Article 85 does not have the same status and competencies as does the Parliament whose mandate has expired in accordance with the provisions of Article 63 of the Constitution”.

Taking into account the final and enforceable character of Constitutional Court Judgments, which can be reviewed, according to the Article 72 of the Constitutional Jurisdiction Code No. 505/1995, only at the initiative of the Constitutional Court, by a decision adopted with the majority of votes of its judges, The Council of the Moldovan Bar Association expresses its hope that the High Court will take into account the expressed opinions, will demonstrate the willingness to recognize and to withdraw the jurisprudential uncertainties, this being the only solution in restoring the legal security and ending the political and institutional crisis in the country.

The Council of the Moldovan Bar Association expects balanced reactions and decisions of the Constitutional Court in this area, greatly relying on the Venice Commission's opinion regarding this situation, having all the confidence in its ability to influence the constitutional judges to strengthen their independence from any political force, to act in the spirit of the Constitution and in the interests of the citizens of the Republic of Moldova.

 

The Council of the Moldovan Bar Association