A referee with the ball. How the Constitutional Court is expected to solve the latest political conundrum in Moldova
This is a translated and slightly adapted version of an article originally published in Romanian on January 20.
Before last November’s presidential election, all the parties forming the current Moldovan legislature wanted a snap parliamentary election to follow up. But after Maia Sandu’s victory, the Socialists and their informal allies from Ilan Șor’s “For Moldova Platform” are not so willing anymore to have early elections, at least not just yet. And they aren’t willing to assume power either, despite controlling a comfortable majority in Parliament. To find a solution out of this stalemate, both Maia Sandu’s Solidarity & Action Party and ex-president Igor Dodon’s Socialist Party have turned to the Constitutional Court, the go-to political arbiter these days. So what are we supposed to make out of the situation?
Maia Sandu and PAS favored two options leading to snap elections: Parliament agrees to either “self-disband,” or remain idle for three months from the resignation of the Chicu Cabinet.
As our contributor Andrei Lutenco anticipated, the Constitutional Court just ruled that the legislature may not “dissolve itself,” because a. the Constitution explicitly states that the dissolution is a prerogative of the president and b. it can happen only in two situations, as laid out in Article 85: “[following] the impossibility to form a Government or due to blockage of the lawmaking process for three months.” And that’s it.
One might wonder whether the three months deadline applies only to the legislative inactivity part, or to the failure to appoint a cabinet as well.
In 2013, the Court, under the chairmanship of Alexandru Tănase, ruled it applied to both. On the failure to appoint a cabinet, the Court clarified: “The three months’ period starts from the appearance of circumstances that determined the need to form a new Government; [the period] continues to run regardless of whether proceedings have been started to form a new Government and/or whether proceedings laid out in Article 85(2) of the Constitution are on-going; it includes the period of consulting parliamentary groups and other legal proceedings; and it represents the time limit for forming a new Government.” 
Article 85(2) refers to the situation where Parliament fails to offer a vote of confidence to the proposed cabinet – if it happens twice, the president may dissolve the legislature after 45 days from the first rejection.
Tănase’s Court, however, said that the three months deadline continues to run regardless of whether a prime minister is nominated or not.
The 2013 ruling is also interesting in that it interprets the phrase “may dissolve” (the Romanian word used in the Constitution is “poate,” which translates as “can” or “may”) as an active obligation: “Upon the expiry of three months, the President of the Republic of Moldova is required to dissolve Parliament if it fails to form a Government.”
In 2015, the Constitutional Court under Tănase confirmed this interpretation by arguing: The Court reiterates that a situation where an interim government becomes permanent is by definition contrary to the spirit of the Constitution and amounts to a threat to parliamentary democracy. [...] Therefore, after the expiry of the three months’ period, the dissolution of Parliament is unavoidable, as Parliament loses the right to any further attempts at forming a Government.” 
However, the Venice Commission in 2019 offered an opinion that disagreed with the interpretations above. For one thing, “unless more than one formal vote of confidence has been made in the Parliament, there is no way of objectively deciding on whether or not it is impossible to form a government.” As to the president’s duty or right to dissolve Parliament, the Commission noted that the difference between “may” and “shall” is “well-established in law” and that “may” should be construed as a discretionary right, especially if the president finds some other way to overcome a constitutional crisis.
For PAS however, the Tănase rulings offer the safest path towards the desired outcome: as long as a cabinet is not appointed, in three months Sandu may dissolve the legislature no matter what happens in the meantime, and then call a snap election.
PAS representatives also maintain that the solution of rejecting a proposed cabinet twice – while the fastest in theory – is doomed to fail, because the Socialists and Ilan Șor’s group will likely endorse any cabinet only to delay elections as much as they can.
Indeed, PSRM and the Șor Party have the same, duplicitous position: while calling for early elections, they say the country needs a “functional cabinet” to handle the crisis and make preparations for a smooth conduct of elections. A similar position has been recently voiced by PDA’s Andrei Năstase as well.
None of them however has offered a legal solution as to how a snap election can even be triggered if a new Government with full powers is invested. As shown above, the Constitution is crystal-clear about this: Parliament can be dissolved only if no law is adopted in a three months’ span, or if a new cabinet is not appointed. The scenario proposed by PSRM, PȘ and PDA cancels out both conditions that can lead to early elections: the appointment of a new cabinet automatically eliminates the second condition; and for a cabinet to be functional, it needs legislation to be passed, which eliminates the first condition as well.
Bottom line, the appointment of a new cabinet is incompatible with the stated objective of dissolving Parliament and can postpone snap elections indefinitely.
Legally, however, the Socialists’ position is supported by a Constitutional Court decision handed down in August 2020: “If a formal absolute majority exists in Parliament, the President of the Republic is obligated to propose the candidate nominated by this majority to the post of Prime Minister. If there is no such formal absolute majority, the President of the Republic is obligated, upon consulting parliamentary groups, to nominate a candidate for Prime Minister regardless of whether parliamentary groups agree with the nomination or not.”
And since PSRM and Șor’s group deny the alliance between them, i.e. no formal absolute majority exists, the August CC ruling indeed requires Maia Sandu to nominate a candidate for prime minister.
If the president rejects the nomination of a formal absolute majority, the CC ruled this would be a violation of the Constitution and a legal reason for suspension by a two-thirds majority. If the suspension is successful, a referendum to oust the president can then be held.
The Court did not state explicitly whether the same legal device is applicable for when the president rejects a prime ministerial nomination in the absence of a formal majority in Parliament.
To clarify this and other issues, Socialist MP Vasile Bolea has recently petitioned the Court. Proceeding from the understanding that President Sandu is under an obligation to nominate someone, the Socialists are asking the Court which the deadline is for making the nomination. They also want to know which the punishment will be if she refuses and whether her failure to nominate someone in a three months’ span is a good reason for dissolving the legislature.
The Court’s answers are expected to provide clarity as to what the next steps will be for Parliament and President Sandu. Regardless of what intentions PSRM/Șor and PAS might have, these questions should have been asked immediately after the resignation of the Chicu Cabinet; it would have been clear by now which ways to trigger early elections are legal and which are not.
But one of the answers can already be guessed. When telling PAS that the “self-dissolution” is not a legitimate option, the Court suggested that if the president refuses to nominate a prime minister, Parliament cannot be blamed for idleness and cannot be dissolved.
However, this line of reasoning is embedded in an admissibility decision, which in the CC hierarchy lies below an interpretation ruling. It means that the interpretation of the Court under the Tănase chairmanship still stands: 3 months without a cabinet equals Parliament’s dissolution. Yet, the argument put forward in the admissibility decision could be an indication of the Court’s willingness to revise this interpretation. It won’t be a first, actually: last summer, an entirely reshuffled Constitutional Court reversed a highly controversial interpretation that allowed the so-called “five minutes suspension” of the president.
And PAS seems to understand that this will likely be the case. Whereas until recently their bet was on not nominating anyone for three months, now PAS seeks to return to the negotiating table. “I hope our Socialist colleagues and other lawmakers will agree to sit and talk about the possibility of rejecting prime ministerial candidates [as a solution to trigger a snap election],” said Mihai Popșoi, a top PAS lawmaker.
The clarifications expected from the Constitutional Court are welcome, but this tendency of Moldovan politicians to increasingly rely on the Court for solutions to crises they themselves create is dangerous, as illustrated by the subordination of the Court to Vladimir Plahotniuc’s regime in the not so distant past. The Constitutional Court should not be a political actor, yet our political parties – both the pro-European and the Russia-leaning ones – constantly seek to attract the Court into their game, testing the limits of the constitutional framework and hoping that the Court will get creative in its interpretations.
In the situation at hand, all eyes are again on the Constitutional Court, which is expected to provide a legal solution to a political gotcha game. A game where the PSRM-Șor informal alliance tries to buy time and zugzwang President Sandu into appointing a lame cabinet with a hostile Parliament, and where Sandu tries to avoid this by seeking a new reconfiguration of the legislature.
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DECIZIE DE INADMISIBILITATE a sesizării nr. 226b/2020 privind interpretarea articolelor 2 alin. (1), 60 alineatul (1), 61 alineatele (1) și (2) și 66 litera a) din Constituție (autodizolvarea Parlamentului), constcourt.md ↩︎