An Uninspired CC Ruling on Expired Passports
This is a translated and slightly adapted version of an article originally published in Romanian.
On January 14, a freshly reshuffled (Ro.) Constitutional Court okayed restrictions barring Moldovans from voting abroad in the February general elections with any form of ID other than a valid passport.
The restrictions were challenged by Ombudsman Mihail Cotorobai, who argued they would be unfair and disproportionate to fellow Moldovans abroad, considering the many options given to resident voters to identify themselves, including a fairly easy procedure of getting a temporary ID on Election Day.
With zero days worked on the Bench prior to their shocking appointment last December, judges Reșetnicov, Gurin & Co took only four days (including the weekend) to deliver the final verdict, siding with the government in a way that underlines the government’s duplicity on diaspora-related matters. Two more weeks had to pass before the decision was published.
In the document that came so terribly late, the CC relies heavily on ECHR case-law relating to other European countries, while failing to consider the concrete context of our diaspora, its role and involvement in our country’s democratic processes. At the same time, the Court chose to guess on the government’s behalf why it would be a good idea not to allow voting abroad based on resident ID cards (called buletin) or an expired passport, instead of just looking at what the government advocates for. In doing so, the CC simply ignored tons of evidence, in the form of policy papers and official commitments, whereby the government promises a greater say to Moldovan communities abroad.
Meanwhile, as a significant part of the diaspora has thus been left out, a Moldovan government’s task group is touring the United States to selectively renew passports for certain voters. Now let’s see what the Court says, what the government says and who is on that mobile team.
A very curious procedure-related thing happened. The Court rejected the Ombudsman’s petition as inadmissible, and did so in camera. The Court may dismiss a petition in private and without hearing the parties in the following four scenarios: 1) the Court deems the matter to be out of its jurisdiction, 2) a ruling already exists on the matter, 3) the challenged provision has been replaced or repealed, or 4) the petition is manifestly ill-founded. Since the first three scenarios are clearly not the case here, the only one left is that the Court dismissed the Ombudsman as talking gibberish.
However, a legal supplication can hardly be called “manifestly ill-founded” if you go ahead and dissect it on the merits, provide counterarguments, and take the reasoning process as far as to reckon the proportionality of measures. All that without hearing the parties.
The CC failed to explain this apparent procedural deviation.
An unimportant right for unimportant voters
The CC wanted to make it clear from the very beginning - in European law protecting the right to vote is not “as stringent” a necessity as protecting other rights, and therefore the government has a broader margin in limiting it. Then it goes on to explain, somewhat irrelevantly to the concrete case of Moldova, why imposing such restrictions on voters abroad would be even more OK, citing the following arguments: 1) overseas voters care less about what happens in their home country (perhaps that’s why they send remittances in huge amounts), 2) they are less involved in drafting electoral programs (as if it would be their fault, not the politicians’), or 3) they are not impacted directly by the decisions of the authorities they help to elect (as if they didn’t have parents, children and other family back home who rely on their hard work).
What the Court fails to cite from ECHR case-law is this: even if the right to vote is indeed less important within the ECHR hierarchy than, say, the right to private life or freedom of assembly, the Strasbourg-based court always considers if a particular limitation imposed by the government is not arbitrary or if the measure is not disproportionate to the aims pursued. Moreover, the ECHR recommends that any electoral legislation should be assessed “in the light of the political evolution of the country concerned”, meaning “that unacceptable features in one system may be justified in another”. In other words, whether a restriction is serious enough to amount to a violation of rights is something to be assessed in a concrete, not abstract context. Our Court however chose to ignore the Moldovan reality, withdrawing itself instead to the abstract realm of “principles and values”.
Aims and proportions
For a limitation of a right to remain constitutional, it must meet the following criteria: 1) it is permitted by a certain law, 2) it pursues a legitimate aim, and 3) it is not disproportionate.
The first condition is definitely met in our case, as the limitation is found in the Electoral Code itself. It’s this provision that the Ombudsman took to the CC to challenge as unconstitutional. As for the existence of any “legitimate aims”, the CC guessed it must be related to the need of preventing voter fraud, while also advancing the argument that newer IDs have more recent photographs allowing for an easier facial recognition of the voter. More curious is this inferrence: Moldovans not being able to vote abroad with a buletin or an expired passport would “strengthen the relationship with the state of Moldova and its citizens by encouraging them to seek a passport of their home state so that they can travel and identify themselves with it”.
None of these aims is substantiated by evidence. Moldovans voted with expired passports in the past - in 2010, 2014 and 2016 - and no significant fraud was reported in connection with it. The argument that newer IDs mean newer photographs and would better help to identify voters does not stand even in theory, since the buletin cards used by Moldovans to vote within the country can have validity periods of twenty years or longer. Lastly, the notion that limiting the right to vote strengthens the migrants’ bond with their motherland, by encouraging them to seek passports, is ridiculous. A bureaucratic formality is hardly a better way to bond than having the desire and ability to participate in the political life of your home country.
Finally, the Constitutional Court stopped a bit to ponder the question of whether restricting the right to vote abroad would be proportionate with the government’s legitimate aims. Determining proportionality comes with some of the following questions: how serious is the limitation, how important is the legitimate aim pursued, is there any causality between the proposed measure and the pursued aim, and could the same aims be achieved with less restrictive measures? Instead, the Court set the bar very low for the government and chose to only examine whether the restriction affected the essence of the right to vote and the effectiveness of its exercise. By holding that general elections are something “predictable”, and voters “can fix well in advance any issues with the validity of their passports”, the Court lets the government of the hook.
The Court however hasn’t considered the fact that voting with expired passports was allowed through Central Election Commission resolutions during the last three national polls. Expecting the practice to continue this year as well would have been - what was the word?- “predictable” (the electoral bloc ACUM even requested the CEC explicitly, to no avail, to issue such a resolution). Nor has the Court weighed in the balance the fact that permitting voting with resident IDs or expired passports would have had zero costs for the government, while allowing thousands of Moldovans to express their will at the ballot box.
A true test of proportionality would have shown that the claimed “legitimate aims” - prevention of voter fraud, the newer IDs with fresher pictures, the emotional affiliation with the motherland - are illusory, whereas depriving citizens of opportunities to vote is real.
How the Government itself contradicts the Court
Still, the best refutation comes inadvertently from the government itself. All the Cabinets from 2009 till present have professed a zealous diaspora-philia, telling Moldovan migrants how important they are for our country. The Filip Government is no exception. Many ongoing programs and adopted policies tout the migrants’ role in developing our country.
For example, launched back in 2010, the EU-co-funded PARE 1+1 project continues to this day. The DOR program is for kids, but the goal is the same - forge stronger ties between migrants and the home country. The Government has also continued holding Diaspora Days and the Diaspora Congress, some good opportunities for the government to promise Moldovan migrants the moon. Another project started under the Filip Government is the Diaspora Engagement Hub, which is kind of self-explanatory.
It’s also the current Government that adopted the “Diaspora-2025” National Strategy, which proclaims the importance of developing “a strategy focused on the sustainable engagement of migrants and the diaspora in the development of their home country, on fostering their permanent, temporary, or virtual return”.
Here’s another quote from the same Strategy: “Therefore, the Government acknowledges the importance of the diaspora and pledges to promote and defend the rights of every citizen, regardless of place of residence, as well as to facilitate mobilization of the diaspora”.
This is echoed in the Diaspora Relations Bureau’s mission as well: “The Government of Moldova, through the DBR, acknowledges the importance of engaging all the citizens of Moldova, regardless of their place of residence, in achieving our country’s growth”.
Yet another document, which intends to encompass the Government’s “integrated approach” to migration and diaspora-related matters, proclaims the following as a fundamental principle: “mobilize Moldovan citizens living abroad in order to make the most of their potential on an individual and community level so that they can fulfil their citizen’s duties in the interest of the Republic of Moldova”. And what is voting if not the fulfillment of a citizen’s duty?
Obviously the CC’s decision comes completely at odds with the official discourse and the existing legal framework. Even if we admit the argument that the government is free - and not required - to ensure the migrants’ right to vote, any decision on that matter cannot be completely at random. It must be consistent with existing policies, in accord with the government’s position or past actions, or at least be corroborated by other official documents.
We have a government that formally pledged, in multiple documents, to ensure and respect the migrants’ rights and, moreover, to encourage their participation in fostering our country’s growth. Ensuring their right to vote seems common sense if we want to achieve “sustainable engagement” and “facilitation of return”. If the government really wants them back, it’s natural to give them a say in how their home should be like when they return. The Court’s argument that the migrants are not concerned by what happens at home, and hence shouldn’t be asked what they think, is refuted by the government itself. The Court should know better than presuming or inventing arguments on the government’s behalf, and instead look them up in existing laws and policy papers.
Money good, vote bad
There’s this notion - somehow trivialized by constant repetition and by the fact that we’ve come to take it for granted - that remittances are a lifeline for Moldova. This is not just conventional wisdom, but a fact confirmed by statistics and acknowledged by official documents. For instance, the Moldova-2020 Strategy: “Economic growth and the tendency of poverty reduction are strongly correlated in the Republic of Moldova with the inflow of remittances and with the consumption they generate. The money earned by Moldovans working abroad has increased the income available to households, leading to a rise in overall demand for consumption.”
To put it shortly, the government recognizes the diaspora’s crucial role in Moldova’s economy. The Court however decided it’s all right if the government administers an economy fueled by migrants’ money while failing to properly ensure their right to vote. It wants their money, but not their votes.
Rights for the right voters
Meanwhile, as if defying the Court’s conclusions, a Moldovan governmental task group is working hard in the United States to renew passports for our compatriots. Well, not for all of them. The team will only visit a few cities. How were they selected? In secret. Without any public consultations, or preliminary requests so that we could find out where the demand for renewed passports is bigger. At least just to keep appearances, because in deciding where to open overseas polling stations the government largely ignored such preliminary registration data. For example, the 333 Moldovans who bothered to announce their intention to vote in Boston didn’t get a polling station, while those zero voters with preliminary registration in Springfield got one.
Among the contact persons on the team we find names like Igor Moșneaga, one of the pastor-turned-lawmaker Valeriu Ghilețchi’s “old colleagues, former students and good friends”, or Radu Colibă, pastor in Lawrenceville’s Baptist community. Another member on the team is Mihail Tîrgoală, also a Baptist pastor in the United States. Their fellow team member in Raleigh, Lora Sinigur, too, is a member of a Moldo-American Baptist community called the Betel Church. It just so happens that Valeriu Ghilețchi, who now runs as an independent in the American constituency, is a former leader of the Moldovan Baptist Church. He is also friends with the last person on the team’s contact list - Stepan Macari, who recently hosted the visiting lawmaker.
To be clear, renewing passports is a commendable activity. The problem is how these folks were selected - how did a government-led ID renewal effort ahead of elections end up having so many Baptist missionaries as members, some even friends directly with the candidate Ghilețchi? Such coincidences simply don’t happen. For his part, the politician denied any connection with the task group, but still couldn’t resist the compulsion of taking credit for championing the “passportization” of Moldovan Americans.
The lack of transparency in how the team was created and its destinations chosen, coupled with the religious affiliation of many of its members, adds to the critique voiced by the opposition that government resources have been used to get votes for Ghilețchi.
The Constitutional Court’s decision is the latest in a string of controversial rulings that casts doubt on its impartiality. The Court cherry-picked ECHR case-law to argue that the government had a theoretical right to restrict the rights of nationals voting abroad. The CC however ignored another ECHR principle: that any such limitation should be assessed in a concrete context. And the constitutional judges did ignore the Moldovan context altogether: the demographic context and transnational families in Moldova, the formidable economic contribution of Moldovan migrants to the subsistence of our country and families left behind, the government’s policies and promises to engage the diaspora as much as possible in developing our country. Instead, the Court tried to invent potential reasons on the government’s behalf. Those reasons are just that - hypothetical - and are completely in disagreement with the officially declared goals. Apparently, the CC didn’t even bother much to make an arbitrary decision look less arbitrary. And the limitation of the right to vote, coupled with the passport renewal effort spearheaded by fellow evangelists and friends of the candidate Valeriu Ghilețchi, enforces the suspicion that the CC ruling is part of a political scheme to achieve an outcome favorable for the government at the polling stations abroad.
The entire decision of the Constitutional Court, an entity that is supposed to protect us from government abuses, boils down to this: “be grateful that you can vote at all”. We are.
Pe 10 ianuarie Avocatul Poporului a cerut Curtii Constitutionale sa anuleze..., fb.com/vladislav.gribincea ↩︎
In other cases, the Court may choose to decide on admissibility together with an examination of the merits. ↩︎
The project’s goal is to “mobilize human and financial resources of Moldovan migrant workers into the sustainable economic growth of the Republic of Moldova by stimulating the establishment and development of small and mid-sized enterprises by migrant workers and beneficiaries of remittances”. Programul PARE 1+1, extins până în 2021, odimm.md ↩︎
Valeriu Ghilețchi: „O seară plăcută alături de vechi colegi, foști studenți și buni prieteni.”, fb.com/valeriu.ghiletchi ↩︎
Member Churches of the Buncombe Baptist Association, buncombebaptist.org ↩︎
Valeriu Ghilețchi: „O seară minunată petrecută în casa familiei Stepan și Svetlana Makar.”, fb.com/valeriu.ghiletchi ↩︎