Alexandru Tanase: Authorities' reaction to Constitutional Court judgments points to maturity of rule of law

2 february 2012, 16:55 print out copy link The link has been copied to the Clipboard
Alexandru Tanase Alexandru Tanase

Info-Prim Neo interview with the President of the Constitutional Court, Alexandru Tanase

A few days ago you have presented the Report on exercising Constitutional Jurisdiction in 2011. Let us emphasize some highlights in the respective document which we have found relevant. So, how was this year for the Constitutional Court? 

In 2011 the Court had 49 complaints /referrals, pending of which 44 were solved and 5 were transferred for the year 2012. 

Is this number of complaints large or small for the Republic of Moldova? 

It is a large number of decisions. For comparison, in 2011 the European Court passed 31 judgments with regard to Moldova. But ultimately, the number of judgments matters less. Their value and quality are important. 

What kind of complaints had the Constitutional Court in 2011? 

The jurisprudence of the Constitutional Court in 2011 largely reflects the challenges that had to be faced by the Legislative, Executive and Judiciary powers. Out of 39 complaints filed in 2011, 24 complaints concerned the constitutionality review of the provisions of some normative acts, 5 complaints the interpretation of the Constitution, 7 referrals the validation of mandates of the Members of Parliament (MPs), 2 referrals the Supreme Court on exception of unconstitutionality, 1 the initiative to revise the Constitution. 

What subjects most often submitted complaints to the Court in 2011? 

The highest number of complaints were signed by MPs - 17 (to which 3 are added from 2010); Parliamentary advocates (Ombudsmen) - 7 complaints in 2011 and 3 taken over from 2010; Central Election Commission - 7 complaints; the Supreme Court Justice - 2 complaints in 2011 and 3 complaints taken over from 2010, Minister of Justice - 2 complaints, another one being taken over from 2010; Prosecutor General - 2 complaints. Whatever the subject matter was, the Constitutional Court did not derogate from its principle to judge matters of law but not those of political opportunity. 

Protection of fundamental human rights is the basic mission of the Constitution. What the Court’s case-law has been enriched with this year? 

As mentioned on other occasions, the struggle for rights and freedoms is a permanent one and will never be definitively won. Namely because of that, the protection of fundamental rights has been always on the agenda of the Constitutional Court. In this respect, it had a number of important findings. For example, the Court has developed in its judgments the meaning of constitutional guarantees in the part pertaining to access to justice, property rights, person's right to free movement, inviolability of domicile, etc.. The Court passed this year a very important judgment by which it developed the rationale of the constitutional principle of presumption of legal acquirement of assets, finding that it establishes a general protection which equally applies to all persons. 

During 2011 the governance has promoted a series of draft laws aimed at reducing, changing or canceling certain social payments and compensations. The majority of these draft laws were challenged in the Constitutional Court. 

As in most countries in Europe, the role attributed to the Court was to determine whether the balance between national economic capacity to ensure effective implementation of these social rights and the state's obligation to respect property rights and the right to a decent living has not been violated as a result of amendments made. In this context, the Court pronounced itself onreduction, modification or cancellation of certain social payments and compensations, stipulating that when the state implements a law which provides for automatic payment of social benefits, this legislation must be considered as generating a proprietary interest is treated as a property right. The Court held constitutional the change of amount of social benefits which does not have as effect suppression of certain rights, livelihoods of people and does not impose an excessive and disproportionate burden in relation to legitimate interests of the community. The Court also ruled unconstitutional the establishment of a contribution length of 35 years for women, that one not being correlated with the general retirement age of 57 years and as a consequence disproportionate. 

Besides economic crisis, the Republic of Moldova experienced a deep political crisis in 2011. What were the most important solutions given by the Court in this regard? 

It is true that political crisis caused by the inability of parliamentary parties to elect the President of the Republic of Moldova marked the jurisprudence of the Constitutional Court. Interpretation at random of constitutional norms by political actors, as well as attempts to find legal solutions for political problems have generated a series of complaints related to election of the Head of State. The Court held that exclusive competence to schedule presidential elections for establishing interim succession of the office of President belongs to Parliament. The Court also determined that the President is obliged to dissolve the Parliament whenever the President is not elected, as provided by the Constitution. The Court also ruled that Parliament could not institute by an organic law other majority than 3/5 for electing the President of Moldova in case of multiple dissolutions caused by Parliament’s failure to elect the President. 

In addition to the inability to elect the President, I watched in 2011 more conflicts between authorities. What was the Court in resolving them? 

Conflicts between authorities occur worldwide and do not necessarily have a negative connotation. These conflicts represent an indispensable element of a democratic regime of government and the Constitutional Court is the institution which aims to resolve these conflicts. 

In 2011 we solved a series of complaints that were intended to clarify the powers of various authorities, their scope and operation mode of institutions regulated by the Constitution. The Court established the procedure of responsibility assumption by the Government over a draft law as a simplified way of lawmaking. The Court found unconstitutional the assumption of responsibility by Government during the Parliamentary recess, without presence of the exponent of the executive power in the plenary session of Parliament, determining the failure of filing any motion of censure and, implicitly, of any political debate on keeping or withdrawing the confidence granted to Government upon investiture. 

The Court pronounced itself on appointment of judges, Presidents and Vice-Presidents of the Supreme Court of Justice, setting the deadline within which Parliament should decide following a proposal of submitted by the Superior Council of Magistracy was that fixed by law (30 days) being a restrictive one, so that Parliament has the constitutional obligation to meet it and breach of this term represents an obstruction of functionality of the Judiciary by the Legislative power. 

In the same context, the Court verified the constitutionality of Parliament's delegation of certain powers to the Ministry of Finance stating that this does not infringe the principle of separation and collaboration of powers in state. 

An interesting judgment of the Court dealt with constitutionality review of formation and functioning of the Government Presidium. The Court noted that formation of Presidium cannot be qualified as determining in itself unconstitutionality of the latter under political pluralism and multiparty system, a permanent cooperation is needed, manifested by various forms and activities between exponents of their various components which mutually "temper" their tendencies of domination. 

Also in 2011, the activity of the Court has undergone internal reforms... 

In 2011 we reformed both the system of deliberation, adoption and delivery of Court's judgments, as well as the way of drafting, exposure and editing of Constitutional Court’s judgments. We decided to resort to internal reforms because we found that between our domestic law and the international law there should not be a wall. In this regard, the Constitutional Court rulings in 2011 took over more elements from the procedure of the Court in Strasbourg. We have relied on the ECtHR case-law in the majority of delivered judgments. The purpose of these reforms is to make the ECtHR judgments as part of the national system of law and ensure practice to ensure convergence between the practices of the Constitutional Court and the European Court. 

How were the acts of the Constitutional Court executed in 2011? 

Reaction of authorities towards judgments of the Constitutional Court is an index of maturity of the rule of law. Due to unexplicable reasons, the state authorities (the Government and Parliament) did not execute the judgments and addresses of the Constitutional Court for 2011. 

The Constitutional Court’s acts are official and enforceable documents all over the country, for all public authorities and all legal entities and natural persons. The President, Parliament and the Government are required to amend, supplement or repeal the act or parts thereof declared unconstitutional and, where appropriate, to issue or adopt a new act within 2 and respectively 3 months from the publication date of the Constitutional Court judgment. According to the data submitted to the Court results that only one judgment of the Constitutional Court was executed in 2011. 

If the examination of the case the Constitutional Court found gaps in legislation, it draws attention of the respective bodies by an address on the need for removal of these gaps. The address must be examined by the concerned authority that within 3 months should inform the Constitutional Court about the results of examination. In 2011 there were sent 9 such addresses. None of these addresses were enforced. 

From what has been said, so far, we should understand that the Constitutional Court in 2011 had a fruitful activity in 2011? But there are voices that have criticized you... 

Each Court exists through its pronounced judgments. In 2011 we had very good judgments. I can tell you that until now, I did not see any critical, impartial and reasoned analysis of any judgment of the Constitutional Court pronounced in 2011. It is natural that Constitutional Court’s judgments are not agreeable to all political actors. In this regard, I will quote Judge Mr. Victor Puşcaş: "There are always two parties involved in a trial but only one of them wins. Two truths cannot exist. Therefore, one side is happy and the other one - not. " With regard to personal attacks against judges of the Constitutional Court, I can tell you only this: The Constitutional Court is a collegial body which means that all decisions shall be adopted not by one judge or another but is the joint decision of all judges of the Court. 

If it were to analyze the facts, we see that most of the critics of the Court should not be dissatisfied. The parliamentary opposition has prevailed in more than half of submitted complaints. I will try to respond to critics of the Constitutional Court by citing the former President of the Federal Constitutional Court of Germany, Mrs. Jutta Limbach: "The Constitutional Court has a difficult task of being always on the edge between law and politics. Law and politics intersect quite often and in such situations, a constitutional court must have Constitution as measure unit in the process of examination". 

What do you suggest for the business year 2012? 

Our goal remains the same: to provide the necessary support for the development of democracy, political pluralism and supremacy of the Constitution in our country through consistency and quality of judgments adopted by the Constitutional Court. 

Valeriu Vasilica

Info-Prim Neo

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