Parliament and Government understand Article 78 of Constitution differently

The Parliament and Government have different views as to how Article 78 of the Constitution can be interpreted. The opinions were expressed in a Constitution Court hearing centering on the procedure for electing the head of state on Tuesday, Info-Prim Neo reports. Liberal MP Mihai Ghimpu, one of the authors of the application to the Court, said in the hearing that they based their application on the amendments made to the Constitution by the law of July 5, 2000, whereby the method of electing the President was modified. Though the bill approved by the Constitutional Court provided for the election of the head of state by a majority of votes of MP, the amendments made by the lawmakers raised the threshold to 3\5 of the votes. According to Mihai Ghimpu, the unjustified interference of the lawmakers in the initial text of the bill, without the approval of the amendments by the Constitutional Court, led to the institutionalization of certain specific procedures for electing the head of state, creating a defective mechanism, untested from theoretical and practical viewpoints, which did not have a clear view on the impact that it may have in society. According to the leader of the Liberal Party, the imperfect constitutional provisions created a system that introduced hidden imbalances and, in certain conditions, destabilized the constitutional order, generating political instability in the state, especially during the last three years. The impossibility of forming a parliamentary majority after the elections of April 5, 2009, July 29, 2009 and November 28, 2010, which would ensure the election of the head of state, does not allow the presidential institutions to function normally, creating am unprecedented situation. “When it is impossible to elect the head of state, the Constitution does not envision another mechanism for electing the President of Moldova, but allows this mechanism to be developed by the ordinary lawmakers in accordance with Article 78 of the Constitution,” said Mihai Ghimpu, making reference to paragraph 6 of Article 78, which envisions that the procedure for electing the head of state is laid down by organic law. He insisted on the necessity of instituting, by organic law, a mechanism that would institutionalize a procedure ensuring the election of the President and not allowing dissolving the legislature repeatedly. Minister of Justice Oleg Efim said he has another opinion about the application of Article 78. “I agree that the procedure is not perfect and blocks the election of the head of state and leads to early elections, but, regardless of the reason why the procedure isn’t working, when we count the votes needed to elect the President we arrive at paragraph 3 of Article 78, which says that the winner is the candidate who won 3/5 of the votes. To my mind, there is no reason for excluding the application of this norm,” he stated. Judge Alexandru Tanase asked in this connection Oleg Efrim to state his opinion whether the Constitutional Court has the latitude to decide if it is justified in the current conditions to act on the basis of the textual interpretation of Article 78 or to put a functional interpretation in order to avoid the continuation of the constitutional crisis as this article did not generate functionality despite the amendments. “After the Constitution was amended, there was only one case when the head of state was elected by the ordinary procedure and five cases when the legislature was dissolved because of this norm. Judging by such a situation, is it opportune for the Court to resort to a functional, not textual interpretation so as to see how the norms can ensure the functionality of the state institutions?” asked the judge. Oleg Efrim answered that this interpretation can become functional only on the basis of the constitutional principles. “The invoked fact that this article generated more non-functionality than functionality points to the necessity of amending this constitutional norm and including this mechanism gradually. I think the only possible way is to amend the Constitution in accordance with the procedure described in the Constitution,” said the minister. Another author of the application, Liberal-Democrat lawmaker Tudor Deliu said that they asked the Court to interpret Article 78 in order to bring the endless discussions on the matter to an end. “There have been interminable discussions on Article 78 during many months. These discussions disturb society. The Court’s decision is definitive and I will comply with it without interpreting it,” he stated. After over two hours of discussions, the Constitutional Court withdrew for deliberations. The Court was asked to rule if: 1. The Parliament can be repeatedly dissolved for the same reason – the non-election of the President of Moldova?; 2. The procedure for electing the head of state, described in Article 78 of the Constitution, is applied repeatedly after the early election of the new Parliament following the dissolution of the previous legislature for not being able to elect the head of state; 3. Can the Parliament develop, by organic law, a mechanism that would institutionalize a procedure guaranteeing the election of the head of state and not allowing the repeated dissolution of the legislative body. When the news story was published (13.40), the deliberations were going on.