Can President Sandu initiate snap elections now?
This is a translated and slightly adapted version of an article originally published in Romanian on March 25.
On Thursday, the parliamentary majority denied MP Igor Grosu, the chairman of the pro-presidential party PAS, the opportunity to become prime minister. The Socialists and the Șor Party walked out of the assembly hall, as Speaker Zinaida Greceanîi declared the matter “consummated and exhausted.” Now the Socialists want another round of consultations for the president to formally nominate their own candidate, as Maia Sandu’s supporters argue that Parliament can now be dissolved without further proceedings.
A consummated matter or a failed attempt?
The phrasing used by Speaker Greceanîi is ambiguous and doesn’t answer a simple question. If Grosu’s proposed cabinet didn’t even get to be voted on for lack of quorum in Parliament, does this mean it was rejected or not?
If yes, this would make it the second unsuccessful attempt to appoint a cabinet, which would meet one of the constitutional conditions needed for the current legislature to be disbanded: “(2) Parliament may be dissolved if it has failed to endorse a Government within 45 days from the first request and only after rejecting two requests for endorsement”.
The first request was made on February 11 when Natalia Gavriliță, also a PAS member, sought Parliament’s vote. And the 45-day deadline is due to expire this Sunday, March 28.
Obviously, the Grosu cabinet was de facto rejected, but what happened de jure on Thursday? A similar situation occurred in 2016, when Ion Sturza, president Nicolae Timofti’s pick for prime minister, was also treated to a no-quorum.
The Constitutional Court ruled on that occasion that “the failure by Parliament to endorse [the proposed cabinet] within 15 days from the nomination, regardless of the reasons of that failure, equates with a failed attempt to form a Government”.
Back then, it was also the Socialist group that didn’t show up, and the Court couldn’t help but admonishingly observe: “the failure to meet the quorum requirement during the Parliament meeting of January 4, 2016 was due to the PSRM group deliberately blocking the proceedings through the absence of its members, and as such was exclusively the result of its conduct”.
So, according to the existing constitutional case-law, Thursday’s meeting equates with a failed attempt to form a Government, the second one, to be exact. The 45-day deadline is expiring on Sunday, and so on Monday both conditions allowing for the dissolution of Parliament will be met.
What about the three months’ deadline?
Three months have already passed since the Chicu Cabinet resigned on December 23, and this appears to be another argument for why snap elections are unavoidable now. The Constitution states that “(1) In case of failure to form a Government or due to blockage of the lawmaking process for three months, the President of the Republic of Moldova, upon consulting parliamentary groups, may dissolve Parliament”.
This section, however, can be interpreted in two ways: 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.”
However, the current makeup of the Court could review this interpretation, as we noted in a previous piece. When the Court recently rejected PAS’s application on the possibility for Parliament to self-disband, it noted that “Article 85 of the Constitution explicitly mandates dissolution as a punishment for an inactive Parliament, manifested as failure to form a Government as well as blockage of the lawmaking process for three months. Dissolution can only be initiated if such inactivity is imputable to Parliament, and not to other government or political actors (e.g. failure by the President to nominate a candidate for Prime Minister, or failure by the candidate for Prime Minister to seek Parliament’s vote of confidence on the cabinet program and its lineup, or failure by the President to promulgate the laws adopted by Parliament)”.
This means we can expect that the Court will not authorize Parliament’s dissolution if President Sandu cites the three months without a Government deadline as the only reason. At best, this could be only a circumstance to strengthen the validity of the main argument – the two unsuccessful attempts to appoint a cabinet in conjunction with the passage of 45 days from the first attempt.
The latest application by the Socialists
The Socialist legislators are now asking the Constitutional Court to invalidate the January 27 presidential decree nominating Natalia Gavriliță for prime minister. They argue that “the challenged decree was published post factum in the Official Gazette, which a priori affects its constitutionality”.
But this formal argument omits the fact that no one in Parliament seemed to have a problem with that at the time.The legislators welcomed Natalia Gavriliță in the assembly hall, heard and debated her proposed program, thus technically confirming the legitimacy of her nomination.
Also, the Constitution does require parliamentary laws and Government decisions to be published in the Official Gazette before they can enter into effect, but there is no such explicit requirement for presidential decrees.
The Socialist legislators should look for precedent at none other than their leader. When he was president, Igor Dodon nominated Maia Sandu and then Ion Chicu for prime minister by writing: “The present decree enters into effect at the date of signing”.
The Socialists’ application doesn’t seem to insist on the Official Gazette argument too much and moves on to make another case. PAS and President Sandu were openly looking forward for Natalia Gavriliță’s candidacy to fail as part of their strategy to trigger snap elections. And so, in the second part of their application, the Socialists ask the Constitutional Court to interpret Natalia Gavriliță’s eagerness not to be endorsed as her rejecting the nomination.
The argument pivots on a comparison with Mariana Durleșteanu, a nominee of the PSRM-Șor alliance who withdrew unexpectedly. If Durleșteanu’s withdrawal announced on FB was good enough for the Court, the Socialists speculate, Gavriliță’s “vote for me not” call should also be treated as quitting. But the comparison omits the fact that Durleșteanu’s announcement needs no interpretation whatsoever – she explicitly posted about her quitting, and the CC judges didn’t have to guess the meaning of her words.
It wouldn’t be a surprise if the Court rejects this PSRM application as well.
There are several deadlines that matter. It’s been more than three months since the Chicu Cabinet resigned on December 23. On March 28, it will be 45 days since the first failed attempt to form a new cabinet. And on March 31, the 15 days’ deadline expires for Parliament to endorse Igor Grosu.
If Thursday’s no quorum counts as a rejection of Grosu’s candidacy, President Sandu may kick off the dissolution procedure as early as on Monday. The unwillingness of the parliamentary coalition to accept it as such would run counter to constitutional case-law. But even so, for the sake of argument: if Grosu wasn’t rejected, this means he still remains the legitimate prime-ministerial candidate, and if he isn’t endorsed until March 31, the last attempt will be exhausted anyway.
The only chance the PSRM-Șor alliance has to avoid a snap election is to accept the consultations that President Sandu is required by the Constitution to hold with the parliamentary groups before deciding on the dissolution. The official Commentaries on the Constitution say that “the grounds for dissolving Parliament shall be ascertained by the Constitutional Court. The rationale behind this check by the Court is to avoid potential abuse by the President in relation to Parliament within the [dissolution] procedure”.
Also, in its ruling that found Igor Grosu’s nomination to be legitimate, the Court observed that “the absolute parliamentary majority will have the possibility to discuss the issue of the Government appointment during the mandatory consultations to be held with the President of the Republic”. The phrasing is vague, though – it’s unclear whether “the possibility to discuss” means the opportunity to propose a different candidate and, if yes, will President Sandu be obligated to accept that candidacy?
Bottom line, next week all the conditions will be met for Maia Sandu to initiate the dissolution of Parliament. It’s the Constitutional Court’s call now whether to greenlight it or not.
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DECIZIE DE INADMISIBILITATE a sesizării nr. 1a/2016, constcourt.md ↩︎
DECIZIE DE INADMISIBILITATE a sesizării nr. 226b/2020, constcourt.md ↩︎