A game changing Constitutional Court decision, announced on a Friday afternoon (March 4) before a four-day holiday weekend, took much of the Moldovan political establishment, expert community and the broader public by surprise. Voters will now be able to elect the country’s president directly. The ruling turned back the clock to the year 2000, canceling amendments to the Constitution approved over a decade and a half ago that empowered the national legislature to elect the head of state. The Court cited procedural violations during the Constitutional reform of 2000 as grounds for its decision (Constcourt.md, March 4). Namely, at that time, the parliament adopted a modified version of the amendments that had been approved by the Constitutional Court. Hence, the Court’s authority to sign off on draft Constitutional amendments was partially infringed upon. This time around, it was the Court that completely sidelined the parliament by, effectively, reintroducing direct presidential elections with no input from the legislature whatsoever. Even though the decision is highly popular—89 percent of Moldovans support direct presidential elections (Iri.org, September 29–October 21, 2015; Realitatea, November 10, 2015)—the ruling is controversial as it further undermines the legitimacy of the Constitutional Court in light of extreme judicial activism during the past several years. Furthermore, the political implications of this decision go far beyond what anybody can reasonably predict—likely to result in both planned and unintended consequences.
Commenting on the latest ruling, a former chairman of the Constitutional Court, Victor Pușcaș, expressed disbelief, while constitutional expert Alexandru Arsene called it an outright abuse of power (Europalibera.org, March 4). Whereas, another former Constitutional Court judge and leading scholar Nicolae Osmochescu welcomed the decision, but he struggled to answer what kind of system Moldova has now, saying that the public should care less about the purely academic discussions regarding parliamentary versus presidential systems (Europalibera.org, March 4). Court Chairman Alexandru Tanase, on the other hand, explained on a primetime political talk show that the country remains a parliamentary republic despite direct presidential elections, since the president does not gain any new powers (Agora.md, March 4). Romanian political analyst Sorin Ioniță’s reaction probably best encapsulates the event: “the Constitutional Court has taken a mind-boggling decision of such magnitude and creativity that it is unprecedented in Europe” (Independent.md, March 4).
Even so, most leading politicians cautiously welcomed the momentous decision. Many jumped at the opportunity to claim it as their own victory. Liberal-Democrats, who had originally submitted the case for constitutional review, heralded the ruling as a fulfillment of their campaign promise (Agora.md, March 4). Lib-Dems may also benefit by having their party leader, former prime minister Vlad Filat, released from pre-trial detention if he decides to run for president, which will give him immunity for the time of the campaign, provided that he is not convicted before then. Socialists are probably the biggest winners, as their leader, Igor Dodon, is the default frontrunner in the looming presidential race; Our Party leader Renato Usatii, the actual frontrunner according to polling data, is ineligible on account of being under the age of 40. To add insult to injury, Usatii and his party stand to lose the most since if early parliamentary elections were called—which is now no longer in the cards—Our Party would have likely won a plurality of seats in the next parliament. Curiously, Dodon initially welcomed the ruling as a vindication of protesters’ demands (Deschide.md, March 4). However, the next day, his fellow colleague, Socialist parliamentarian Bogdan Tirdea, questioned the Constitutional Court’s decision, calling it an anti-constitutional coup. Tirdea wondered what would now stop the Court from striking down other articles from the Constitution, such as that on the country’s military neutrality (Noi.md, March 5).
Another leading contender for the would-be presidential race, Andrei Nastase, the leader of the Civic Action Platform Party, welcomed the decision, claiming it as a success of the civic movement he had helped mobilize, which has collected about 500,000 signatures for a referendum on that particular issue (Independent.md, March 4). Democrats, in the words of Parliamentary Speaker Andrian Candu, conveniently presented the decision as evidence for the lack of state capture (Realitatea.md, March 4). Yet, his colleague Dumitru Diacov questioned the legitimacy of the new ruling. Diacov, the honorary chairman of the Democratic Party, served as speaker of parliament in 2000 and had mastermind the constitutional reform that originally replaced direct presidential elections with an election by the legislature. Another strong presidential candidate Maia Sandu welcomed the news, but emphasized the lack of trust toward Moldovan state institutions, including the Court (Agora.md, March 5). Ironically, only the Communists and the Liberals voiced immediate concerns about the ruling. Both parties lack a feasible candidate for the race. Communists express concern about the legitimacy of the ruling, whereas the Liberals say they worry that voters could be manipulated and corrupted (Pcrm.md, March 5;Independent.md, March 4).
Apart from the aforementioned candidates, Constitutional Court Chairman Alexandru Tanase is a wildcard in the presidential race. Even though he has denied having any intention to enter the race, he has until fall, when elections are likely to take place, to change his mind (ProTV, March 4; Publika.md, March 5). If supported by the political machine of the ruling coalition’s “gray eminence,” Vlad Plahotniuc (see EDM, January 12, 14, 15), Tanase could be a formidable opponent, provided that Plahotniuc does not run himself.
One thing is certain, the Court ruling completely changes the political agenda in Moldova by avoiding the risk of early parliamentary elections. Moreover, it undermines the momentum built up by the opposition over the course of the past year through mass protests calling for amending the Constitution in the parliament or via a referendum. In light of how the decision to reinstate direct presidential elections was made, but also depending on how the campaign goes and who is elected Moldova’s next head of state, direct popular legitimacy can be both a blessing and a curse. The country is likely to face a destabilizing power struggle between the legislature and the new president, particularly if the presumed frontrunner, the pro-Russian Igor Dodon, frames his campaign as a referendum on Moldova’s pro-European course.
Finally, if Moldova’s recent political history is any indication, Speaker Candu’s hopes for an election of a “visionary president” may be futile (Candu.md, March 5). Also, his attempts at downplaying concerns over state capture are disingenuous. If anything, a thorough analysis of developments in Moldova stimulates more not fewer questions of that nature.
Note 1: The original article was written for the Jamestown Foundation and can be accessed here.
Note 2: To make things even more controversial, the Court had already once reviewed the violations cited in this ruling back in 2001 and upheld the reform. Moreover, amid the constitutional crisis that caused two early parliamentary elections and kept Moldova without a president for almost three years between 2009 and 2012, an assistant judge and currently a candidate for the Court, Veaceslav Zaporojan, floated the idea of reversing the Constitutional reform of 2000, but was ignored (E-democracy.md, May 5, 2011). According to former deputy Justice Minister Sergiu Gurduza, even the current Chairman of the Constitutional Court, then Minister of Justice, Alexandru Tanase, considered the idea outlandish and laughed it off (Facebook, March 4, 2016).