Erase and Rewind: Moldova’s Constitutional Reform

The timing and political consequences of the decision to repeal the constitutional amendments seem to confirm suspicions over the independence of the court.

Back in 2000

In early March, Moldova’s constitutional court repealed key constitutional amendments introduced 16 years ago regarding the procedure for electing a president. Until 2000, citizens elected the president via popular vote. The amendments made in the year 2000 instead gave parliament the power to elect the president, whose executive powers were also curbed. These changes transformed Moldova, at least on paper, into a parliamentary republic. In 2016, the court reversed the changes to the constitution re-empowering Moldovan citizens to elect the head of state directly again. This ruling however has not reinstated the presidential powers that were taken away by the reforms in 2000.  

The constitutional court brought three main arguments to justify repealing the constitutional amendments. Firstly, it established that law-makers had violated the procedure for amending the constitution in 2000. Secondly, it found that the method of electing a president after the changes to the constitution meant that a high threshold would be required for a winner to emerge (61 votes out of 101 MPs) – something which may trigger future political deadlock and increase the likelihood that parliament would need to be dissolved after failed attempts to elect a president (as in 2009-2012). Thirdly, in search of external legitimacy, the court referred to recommendations made by the Venice Commission for Moldova’s parliament to amend the constitution in order to prevent such political impasses in future (although the commission recommended lowering the threshold rather than changing the whole procedure).

This decision represents a major blow to Moldova’s legal and political order. The surprising reversal of constitutional changes made 16 years ago casts doubt over the durability of constitutional regulations that govern relations between the executive, judiciary and legislature. It creates a dangerous precedent that makes the political system less predictable; it signals that the rules of the political game can change mid-stream. More importantly, the decision signals that the constitutional court is ready to replace the legislature when there is no political consensus in parliament to improve the constitution. Hence, instead of being perceived as an impartial arbiter between legislature, executive and judiciary, the court is regarded increasingly as a body that serves narrow political interests.

One Shot, Three Targets Down

The timing and political consequences of the decision to repeal the constitutional amendments seem to confirm suspicions over the independence of the court. After all, its ruling suits the current cross-party majority in parliament and its main custodian, the Democratic Party (PDM), which is informally led by Moldova’s richest tycoon Vlad Plahotniuc. The court’s decision has had three main ramifications. It has temporarily calmed the protest mood in the population, excluded inconvenient presidential competitors from the 2016 race, and divided the political opposition.  

Firstly, the request to verify the 2000 constitutional reforms was submitted in November 2015, while the constitutional court decision was issued just three weeks before the mandate of the outgoing president was due to expire. Previously it took the court only few weeks to issue a ruling. This time, after more than three months of deliberation, the decision came just in time for the governing majority as the opposition vowed to organise mass protests and block the parliament building as soon as the procedure for electing a new president began. The selection of a new head of state in parliament could easily serve as a trigger for another round of popular unrest, threatening the survival of the governing coalition. The decision of the constitutional court not only cancelled what promised to be a highly charged political event, but also offered something that people had been demanding in the streets since 2015 – a president elected by popular vote. An opinion poll from November 2015 shows that 91 percent of citizens support direct elections of the head of state. Therefore, the ruling offers an incentive which diminishes the protest mood, at least in the short term, and in turn wins the current government more time to consolidate its power.

Secondly, the constitutional court reversed the procedure of electing the president but not the amendments concerning age requirements for a presidential candidate. The court maintained the modifications from 2000 which pushed the age limit for a candidate up from 35 to 40 years – conveniently excluding two potential candidates, Renato Usatii and Dorin Chirtoaca, from the next presidential race. Both are 37 years old and are mayors of municipalities in Balti and Chisinau. They are charismatic politicians who have an established power base in major Moldovan cities. In opinion polls they both enjoy relatively high levels of public trust – (Usatii 37 percent, Chirtoaca 30 percent). With Chirtoaca’s image eroded by an unconvincing performance in Chisinau, his chances of the presidency were not very strong. Nonetheless, he could still have played an influential role in the second round of voting, guiding his voters towards one of two finalists. In contrast, Usatii (with murky links in Russia), who relies on a Trump-style discourse, has very strong chances of success in the presidential contest. However, because he is barred from elections, Socialists (PSRM) and PDM will have to fight hard to capture those who would have otherwise voted for him.

Thirdly, the decision of the constitutional court has a divisive effect on the opposition. Previously, the left and right opposition parties (although such categories in Moldova are often artificial) bonded together to challenge the new parliamentary majority accused of corruption and resistance to investigate the huge fraud in Moldova’s banking sector. They agreed to put aside traditional foreign policy divisions and focus on the domestic agenda. They suspended competition with each other and cooperated on a joint objective, namely, to provoke early parliamentary elections. The reintroduction of the direct vote not only deprives them of one of their popular demands (reinstating direct presidential elections), which had previously been used to mobilise society, but makes them bitter competitors again. So their short-lived tactical unity has crumbled, while opposition leaders announce their intentions to run for the presidency. The ruling coalition has thus regained the initiative, whereas its embattled government has more space to manoeuvre.

Upcoming Presidential Contest

By law, elections should be organised within two months of the expiration of the outgoing president’s mandate, which was on 23 March. However, the date of the presidential elections has been set for 30 October as parliament first has to assess the legislative implications of the constitutional court’s ruling, introduce necessary amendments in the electoral norms, and put aside funds for elections that had not been foreseen in early 2016. It might take several months to introduce amendments and make the necessary preparations for the presidential vote on a central and regional level. Candidates and political parties will also need time to organise electoral campaigns. According to the constitution, the outgoing president will continue to exercise his mandate until the next head of state is sworn in.

For PDM, which announced that it will have its own candidate in the race, the ideal situation would be to frame elections as a (fake) choice between East and West. Positioning itself in the centre, as a political force able to successfully maintain the balance between East and West, PDM is likely to favour a second round face-off against the perceived pro-Russian candidate (leader of PSRM Igor Dodon). Hence, the elections could be narrowed down to sterile geopolitical debates instead of focusing on the domestic challenges Moldova faces. The use of administrative resources and clandestine support of spoiler candidates by PDM to inch elections towards its desired result is very likely. 

The day after the vote

The head of state elected in 2016 will have more popular legitimacy than predecessors elected by parliament. The new president will claim that he was voted not by 61 MPs, but by thousands of ordinary citizens. At the same time, the new head of state will still enjoy limited powers (mainly in defence and foreign affairs) as the constitutional court reversed the procedure of electing the head of state, unlike Ukraine’s court which reinstated previously curbed presidential powers in 2010.

If one of the opposition leaders, in particular from the centre-right emerges as a winner (for example, Maida Sandu or Andrei Nastase), conflictual cohabitation with government is very likely. They will portray themselves as a genuinely reformist leader. Relying on the popular mandate, he or she would use presidential power to attack the governing coalition for mimicking reforms (adopting half-measures or introducing provisions which weaken reformist laws passed by the parliament). In contrast, it is also probable that the president will rely on the Supreme Security Council (which he chairs), to promote an anti-corruption agenda and de-oligarchisation as part of a national security strategy. With limited powers, but making full use of popular legitimacy, the president could still put more pressure on the government. This, in turn, could motivate the ruling coalition to half-heartedly pass reforms related to the association agenda with the EU.      

If, however, the ruling coalition wins the presidential contest, Moldova will continue on the path towards a monopoly of political and economic power by the PDM. The government will probably resign only to make space for an executive backed by the same majority in the parliament but led by PDM’s main sponsor, Vlad Plahotniuc. With a head of state at the helm representing the ruling coalition, there will be few obstacles for Plahotniuc to secure the nomination for prime minister once refused by the outgoing president (in early January 2016) for lack of integrity. This development will strengthen the patrimonial nature of the political regime in Moldova. It will also kill any chance of swift implementation of reforms related to the Association Agreement for fear that they will the disrupt patron-client networks which underpin the regime.

Stanislav Secrieru is a research fellow at the Polish Institute of International Affairs.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.


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