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Strasbourg, 20 June 2000
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CDL (2000) 53
Or. Fr.
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
SECOND
INTERIM REPORT
ON
CONSTITUTIONAL REFORM
IN
THE REPUBLIC OF MOLDOVA
adopted by the Commission
at its 43rd Plenary
meeting
(Venice, 16 June 2000)
I. Introduction
1. In April 1999, following the
consultative referendum on the possible amendment of the Constitution of
Moldova organised by President Lucinschi, the Committee on the Honouring of
Obligations and Commitments by Member States of the Parliamentary Assembly of
the Council of Europe, decided to ask the Venice Commission to follow
constitutional developments in the Republic of Moldova. The Venice Commission
was informed of this decision by letter of 3 May 1999. Furthermore, on 25 May
1999, the Commission was also asked to look at the question of constitutional
reform by the Parliament of Moldova. The Parliament submitted to the Venice
Commission a draft for a revision of the Commission prepared by 39 deputies.
2. On 13 June 2000, the
Parliamentary Assembly of the Council of Europe asked the Venice Commission to
examine all projects for constitutional reform currently examined by the
Constitutional Court and by the Parliament. The Commission has appointed rapporteurs
on these drafts and will adopt its opinion at its next Plenary meeting on 13 to
14 October 2000. The individual opinions will be forwarded to the Assembly as
soon as they are available.
II Cooperation between the
Venice Commission and the Moldovan authorities in 1999
3. On 1 July 1999, following
the consultative referendum on the possible modification of the Constitution,
the President of the Republic of Moldova, Mr P. Lucinschi, signed a decree
setting up a National Committee to draft a law amending the Constitution of the
Republic of Moldova (Constitutional Committee). Its aim was to propose changes
which would reinforce the role of the executive. In the space of two months,
the Constitutional Committee presented the Venice Commission with 4 versions of
draft constitutional modifications, all of which aim to establish a
presidential régime in Moldova.
4. At its 41st
plenary meeting in December 1999, the Venice Commission adopted an interim
report on constitutional reform in the Republic of Moldova and transmitted it
to the Parliamentary Assembly of the Council of Europe (CDL (99) 88). The
Venice Commission expressed the desire that all parties concerned continue to
seek a consensus on constitutional reform.
5. As explained above, the
Venice Commission was asked to examine the proposal of the 39 deputies. In its
Interim Report it stated that the text was in conformity with democratic
standards.
6. On the other hand, the
Venice Commission considered that the Constitutional Committee’s draft contained
a number of elements which did not allow confirmation that it was in conformity
with European democratic standards . At the same time, the draft in its
entirety was unacceptable to the Parliament. The observations by the Venice
Commission appear in the Interim Report presented to the Parliamentary Assembly
in December 1999.
7. A further draft, aimed at
setting up a parliamentary régime in Moldova, was presented by 38 deputies in
the Moldovan parliament. The Commission has not yet examined this draft.
III. The work of the Joint
Committee
8. During his official visit to
Moldova from 6 to 7 December, the President of the Parliamentary Assembly of
the Council of Europe, Lord Russel-Johnston made an urgent appeal to the
President of Moldova and to the Parliament, urging them to reach a compromise
on the subject of constitutional conflict which opposes both sides on the
manner of reinforcing the executive. Furthermore, he suggested "that a
committee of wise persons, comprising members of the Moldovan parliament and
personalities nominated by the President of the Republic, could, with the help
of the Venice Commission of the Council of Europe, draw up such a
compromise".
9. Following this appeal, the
President and the Parliament of the Republic of Moldova decided to create, in
February 2000, a Joint Committee who would elaborate a single draft of
constitutional amendments. This Committee would comprise three representatives
of the President and three of the Parliament. The two sides asked that this
Committee be chaired by Mr G. Malinverni, member of the Venice Commission, who
accepted this proposal.
10. The Joint Committee met three
times, on 9 and 10 March and on 26 and 27 May in Chisinau and on 7 and 8 April
in Strasbourg. The Joint Committee prepared a draft proposal for the revision
of the Constitution accepted by all its members (the text appears in Appendix I
to this report). The final text was signed by the members of the Joint
Committee.
11. As stated above, the draft
constitutes a compromise between the Parliament and the Constitutional
Committee. Nevertheless, the participants were unable to agree on the two
following important points: the right of the President to dismiss the Prime
Minister and on the electoral system. On the first question the parliament categorically
refused to concede this right to the Head of State. As for the electoral
system, the parliamentarians considered that this reform should be made at a
later date by way of changes to be made to the Electoral Code.
12. In this connection it should
be mentioned that, at a time when the work of the Joint Committee was still in
progress, the President of the Republic submitted a new draft text for
examination to the Constitutional Court. The authors of the draft indicated
that they had based themselves on the results of the work of the Joint
Committee working under the aegis of the Venice Commission. When examining this
text, it is apparent that there are important differences between the text
proposed by the Joint Committee and the text submitted by the President.
Following a request from the President of the Joint Committee and the Secretary
of the Venice Commission, the President of the Republic of Moldova accepted to
respect a moratorium on all the work in the field of constitutional reform
until the Joint Committee had finished its work. The Parliament did likewise
for the proposals made by 39 and 38 Deputies already presented to the
Parliament.
13. In accordance with the
provisions of the Moldovan Constitution, all draft proposals for constitutional
reform must first be examined by the Constitutional Court. It is now up to the
President or to the Moldovan Parliament to submit the draft prepared by the
Joint Committee to the Constitutional Court. Moreover, the drafts of the 39 and
38 members of the Parliament, already examined by the Constitutional Court, are
with the Parliament, whilst the Presidential draft is still subject to
examination by the Constitutional Court. None of the texts have been formally
withdrawn. It is therefore uncertain that the text established by the Joint
Committee will be accepted.
IV. Conclusions
The Venice Commission welcomes that the members of the Joint Committee were
able to agree on a compromise text for constitutional reform. The amendments
proposed take into account the experience of different European States and the
needs of Moldova, and at the same time considerably reinforce the Executive
without undermining the principle of separation of powers. The Venice
Commission is hopeful that the text, which is the result of joint work by the
representatives of the Parliament and the Constitutional Commission, will have
the support of the authorities and of the different political forces
represented in Parliament.
A P P E N D I X I
Chisinau, 27 May 2000
JOINT COMMITTEE
RESPONSIBLE FOR PROPOSING A
DRAFT REVISED
CONSTITUTION FOR THE REPUBLIC
OF MOLDOVA
PROPOSALS
FOR THE AMENDMENT
OF THE CONSTITUTION
OF THE REPUBLIC OF MOLDOVA
ADOPTED IN CHISINAU ON 27 MAY 2000
CHAPTER IV
PARLIAMENT
1. The Joint Committee has
examined two proposals for reforming the electoral system, one from the
Constitutional Committee which would entail electing 70 members of Parliament
on a single-seat majority basis and 31 by proportional representation, and
another which would entail electing all the members of Parliament by
proportional representation in the constituencies. The Joint Committee has not
been able to agree on either of these systems.
2. Letter "b" of
Article 66 will read as follows:
"b) To call referendums within the meaning of Article 75."
3. The Third Section will be
headed as follows: "Legislative procedure and referendums".
4. Article 72 is maintained in
its 1994 version.
5. Article 74 will read as
follows:
Article 74
The passing of laws and resolutions
1.) Constitutional laws shall be
passed in accordance with the procedure provided for under Title VI of the
Constitution.
2) Organic laws shall be passed
by majority vote of majority of elected deputies based on at least two ballots.
3) Ordinary laws and
resolutions shall be passed by the majority of the votes cast by the members
present in session except where otherwise provided for in the Constitution.
However, for such acts to be passed at least half of the members must be
present.
4) Parliament shall examine
bills introduced by the Government, as well as bills accepted by the latter in
accordance with the order and priorities established by the Government. The
Government may decide to ask that its bills be examined under urgent procedure.
5) The rules of procedure of
Parliament shall set forth the procedures for passing organic laws, ordinary
laws and resolutions, including urgent procedure.
6) The laws shall be submitted
to the President of the Republic of Moldova for promulgation.
6. Article 75 will read as
follows:
Article 75
Referendums
1) Problems of utmost gravity
or urgency confronting the Moldovan society or State may be resolved by a
Republic-wide consultative referendum. A consultative referendum on matters of
national interest may be called by the President or by Parliament following
mutual consultation in accordance with the legislation in force.
2) Constitutional referendums
shall be organised and run in compliance with Articles 142 and 143 of the
Constitution and with the legislation in force.
3) Problems of major importance
for a given locality may be submitted to a local referendum in accordance with
the legislation in force.
CHAPTER V
THE PRESIDENT OF THE REPUBLIC
7. Article 77 will be
supplemented by a paragraph 3 reading as follows:
"The President of the
Republic shall ensure respect for the Constitution and the proper functioning
of the institutions. For this purpose, he shall act as a mediator between the
state authorities and between the State and society."
8. Article 82 will read as
follows:
Article 82
Nomination of Government
1) Within no less than fifteen
days and no more than thirty days of the convening of Parliament and following
consultation with the parliamentary groups, the President shall propose to
Parliament a candidate for the office of Prime Minister. The candidate must be
elected by an absolute majority of elected members within ten days. The person
thus elected must be appointed by the President of the Republic of Moldova.
2) If the proposed candidate is
not elected within ten days, Parliament may elect a Prime Minister by a
majority of its elected members within fourteen days of the ballot provided for
in paragraph 1 above.
3) If no candidate is elected
within this time limit, a new ballot shall be held immediately, following which
the person obtaining the highest number of votes shall be deemed elected. If
the person elected obtains a majority of votes of the elected members of
Parliament, the President must appoint him within ten days of the election. If
the person elected fails to obtain that majority, the President shall either
appoint him within ten days or dissolve Parliament.
4) Ministers shall be appointed
and dismissed by the President at the proposal of the Prime Minister.
9. Article 85 will read as follows:
Article 85
Dissolution of Parliament
1) In cases where it is
impossible to elect the Prime Minister in accordance with Article 82 paragraph
3 and where a motion of no confidence within the meaning of Article 106(1) has
been passed, the President of the Republic, following consultation with the
parliamentary groups, may dissolve Parliament.
2) Parliament may not be
dissolved during a state of emergency, martial law or war.
10. Article 88f) will read as
follows:
"f) call referendums
within the meaning of Article 75."
11. Article 93 will be
supplemented by a paragraph 3 reading as follows:
"Laws amending the
Constitution shall be promulgated by the President of the Republic of Moldova
within 15 days following their approval by referendum or 100 days after the
passing of the law if no constitutional referendum has been initiated within
that period."
CHAPTER VI
GOVERNMENT
12. The title of Article 96 will
change to "The role of the Government and the responsibility of its
members". The present paragraph 2 will be replaced by the following text:
"2) The members of the
Government shall bear political responsibility for the management of their
ministries within the terms established by the Constitution and the legislation
in force."
13. Article 98 will be entitled
"Taking up of office". The first three paragraphs will be deleted.
14. In Article 102 of the
Constitution, "Acts of Government", the following amendments and
additions will be made:
a) In paragraph (1),
incorporate the word "ordinances" after the word "issues".
b) After paragraph (1), a new
paragraph (2) will be inserted, reading as follows:
"(2) The ordinances shall be issued in accordance with Article
106(2)."
c) Previous paragraphs (2) and
(3) become paragraphs (3) and (4) respectively.
15. Article 104 will read as
follows:
"The Government shall supply Parliament with all the information and
documents that it and its committees and individual members may request."
CHAPTER VIII
RELATIONS BETWEEN
PARLIAMENT AND GOVERNMENT
16. Article 106 will read as
follows:
Article 106
Positive motion of no confidence
1) Parliament may carry a
motion of no confidence in the Prime Minister if initiated by at least
one-quarter of the members.
2) Parliament may express its
opposition to the Prime Minister only by electing a successor by the majority
of the members and by asking the President of the Republic to dismiss him. The
President must accede to this request and appoint the person elected.
3) The motion of no confidence
shall not be examined until at least 3 days have elapsed from the date when it
was brought before Parliament.
17. An new Article 106(1) will
read as follows:
Article 106(1)
Committal of responsibility by the
Government
1) The Government may engage
its own responsibility before Parliament for a programme, a general policy
declaration or a bill.
2) The Government shall be
dismissed if a motion of no confidence tabled by at least one-quarter of the
members within three days following the tabling of the programme, general
policy declaration or bill, is passed by the majority of the elected members.
3) If the Government is not
dismissed in accordance with paragraph (2), the bill tabled shall be deemed
passed, and the Government shall be under obligation to implement the programme
or general policy declaration.
4) If the motion of no
confidence is passed, the President may dissolve Parliament within 21 days. The
right of dissolution shall expire as soon as Parliament has elected a new Prime
Minister by the majority of the elected members.
18. A new Article 106(2) will
read as follows:
Article 106(2)
Delegation of legislative power
1) The Government may ask
Parliament, with a view to implementing its programme of activities, to
authorise it to adopt ordinances in a given sphere, for a certain period of
time.
2) Parliament grants the
Government the authorisation provided for in paragraph (1) above by passing an
organic law of authorisation, which must state the sphere and time limit in
which such ordinances are to be issued.
3) Ordinances shall enter into
force at the time of their publication. They are not to be promulgated. The
bill approving the ordinance or ordinances shall be submitted to Parliament
under the terms established by the law of authorisation. Any failure to comply
with the time limit shall result in the ceasing of the effects of the
ordinance. If Parliament does not reject the bill approving the ordinances, the
latter shall remain in force. Following the expiry of the time limit mentioned
in paragraph (2) above, the ordinances may be repealed, suspended or modified
only by law."
TITLE IV
NATIONAL ECONOMY AND PUBLIC
FINANCE
19. Article 131 "National
public budget" of the Constitution will be supplemented by a new
paragraph 4, reading as follows:
"4) Any legislative
initiative or amendment resulting in an increase or a reduction in budgetary
income or borrowing, or an increase or reduction in budget expenditure, may be
adopted only after such increases or reductions have been agreed to by the
Government."
Paragraphs 4 and 5 will become paragraphs 5 and 6 respectively.
TITLE V
CONSTITUTIONAL COURT
20. Article 135 a) and f) will
read as follows:
"a) enforces on notification constitutional review of laws and orders
of Parliament, Presidential decrees, ordinances and decisions of Government, as
well as international treaties endorsed by the Republic of Moldova.
[…]
f) ascertains the circumstances justifying the suspension from office of the
President of the Republic of Moldova or the interim office of the President of
the Republic of Moldova."
TITLE VI
REVISING THE CONSTITUTION
21. Articles 142 and 143 will be
supplemented as follows:
Article 142
Limits of revision
1) The provisions regarding the
sovereignty, independence and unity of the State, the provisions set forth in
Articles 1 to 6 above, as well as those regarding the permanent neutrality of
the State may be revised only by constitutional referendum by a majority vote
of registered voting citizens.
2) No revision shall be allowed
if it results in the suppression of the fundamental rights and freedoms of
citizens or of the guarantees of those rights and freedoms.
3) The Constitution may not be
revised in a state of national emergency, martial law or war.
Article 143
The Law on Constitutional revision
1) Parliament must vote on any
revision of the Constitution within no more than eighteen months following the
date on which the draft was submitted. The law must be passed by a two-thirds
majority of the members.
2) The law on constitutional
revision shall enter into force 100 days after the passing of the law by
Parliament and the publication of the draft in the Monitorul officiel,
unless a constitutional referendum is initiated by 200,000 citizens or by the
President of the Republic within the aforementioned period. If such a step is
taken, Parliament, having first obtained the opinion of the Constitutional
Court, shall organise the constitutional referendum in accordance with the law.
3) If the constitutional
referendum provided for in Article 142 (1) yields a negative result, the law
submitted to the referendum shall be deemed null and void.
4) If the constitutional
referendum provided for in paragraph 2 above yields a negative result, the law
submitted for approval shall be deemed passed.
* * *
Done in Chisinau on 27 May 2000 in triplicate in the presence of:
Giorgio MALINVERNI
Chairman of the Joint Committee
Mihai PETRACHE (signature)
Anatol PLUGARU (signature)
Maria POSTOIKO
Eugen RUSU (signature)
Vladimir SOLONARI (signature)
