In this post, I examine the game of constitutional ping-pong  in Moldova. After a surprising ruling of the Moldovan Constitutional Court, the president will be now once again directly elected. In the following, I will describe the constitutional amendments, amendment attempts concerning the presidential elections and the recent ruling to justify the Ping-Pong label.
With the acceptance of a new democratic constitution in 1994 the process of democratization of the Republic of Moldova experienced a first success. However, the process of transformation has since shown severe difficulties. Most importantly, the 1994 constitution failed to establish a clear separation of competences, especially favoring presidential dominance. As stipulated in Art. 78, Sec. 1 of the 1994 constitution, the president was directly elected with a term of four years (Art. 80, Sec. 1) and could only be reelected once (Art. 78, Sec. 5). Constitutionally, the president had a dominant position compared to the prime minister, in particular for the dissolution of parliament. In addition to the purely formal nomination of the prime minister (Art. 98), the president’s right to dissolve parliament after two failed investiture attempts featured as both a presidential threat of force and a measure to discipline the fragmented parliamentary parties. The president had the option of nominating two constitutional court judges (Art. 136, Sec. 2) and the right of legislative initiative, including constitutional amendments (Art. 73). He had – and still has – a suspensory legislative veto (Art. 73 and 93).
The first attempt to change the basic configuration of the political systems was the 2000 constitutional amendment. The events leading to this constitutional amendment were accompanied by changing party constellations and the instability of the parliamentary party groups. In a first step to solve the increasing confrontational relation between the main political actors, then-President Petru Lucinschi tried to force a further concentration of presidential competences with a national referendum. However, this referendum, which would have resulted in the sharp increase of presidential power, did not receive the required quorum of 60% (Elections Code of the Republic of Moldova 1997). But this confrontational approach by Lucinschi triggered a parliamentary response – namely a constitutional amendment changing the fundamental structure of the political system to a purely parliamentary system. According to this amendment, the president was no longer directly elected, but had to be elected by a 3/5 majority by parliament (Art. 78). This 2000 constitutional amendment also included other principles, e.g. the presidential right to nominate constitutional court judges (Art. 136, Sec. 2), the president’s right to initiate constitutional amendments (Art. 141c), and it limited the functions of the president during the nomination of the prime minister (Art. 98, Sec. 4). In turn, the position of the government was explicitly strengthened to the detriment of the president. Most importantly, Art. 73 was amended with Sec. 3 providing precedence to governmental and deputy legislative initiatives in the parliamentary legislative process.
However, this constitutional amendment did not have the intended effect. This became especially apparent in 2009. The provision that the president had to be elected by a three-fifths majority (meaning 61 votes) was particularly problematic. After the end of the term of President Voronin from the Communist Party and the parliamentary elections in April 2009 the Communist Party had 60 mandates, but did not succeed at gaining one additional vote from the opposition. After the July 2009 elections, the Alliance for European Integration (Alianța pentru Integrare Europeană) gained a majority of 53 mandates and was thus able to form the new government – but not to elect a new president (BBC News Online). Deadlocked for 900 days, this was a self-inflicted constitutional crisis based on the specific majority construction: The electoral procedure for the president required that after a failed first round of presidential elections in parliament, a second election has to be held within 15 days. Otherwise, the acting president has to dissolve parliament and call for early elections. With the higher majority necessary to elect the president than to elect the prime minister, a constitutional crisis was always on the brink. During this political crisis even a constitutional amendment to return to a semi-presidential system was seriously discussed and put to a national referendum by the government coalition. This referendum was highly disputed in its procedural legality (see for more details Fruhstorfer 2016) and also failed because of a low voter turnout of 30.07% (Adept 2010). Not being able to solve this crisis, it took until March 2012 to elect a new president (Nicolae Timoftis).
Considering this brief history of constitutional politics on executive-legislative relations in Moldova, it comes at no surprise that this topic is now on the agenda again. With a thunderbolt, on March 4, 2016 the constitutional court ruled the 2000 constitutional amendment unconstitutional (Constitutional Court 2016). With this it showed an unprecedented level of judicial activism and some might be reminded of a similar process in Ukraine in 2012 (see Gallina 2016). Based on the complaint from 18 deputies from the ruling PLDM (Partidul Liberal Democrat din Moldova), the court’s decision is based on procedural problems of the 2000 process. According to Art. 141 on the amendment of the constitution, amendment laws can be “submitted to Parliament on condition that the Constitutional Court issues the appropriate recommendation supported by at least 4 judges”. It was now argued by the authors of the complaint that in particular for Art. 78 (election of the president) and Art. 85 Sec. 4, the procedure was not followed correctly as the text of the amendment initiative changed between the first and second reading in parliament. What is reported is that both the requirement of minimum age of a presidential candidate and the majority necessary to elect a president were changed between the two readings. The initial draft allegedly listed the minimum age at 35 years, and the necessary majority as 51 votes, as well as a different version of Art. 85; the implemented amendment however had a 40-year age limit and required 61 votes for a presidential election (Digi 24 2016). Based on these changes, the court now decided to actually amend the constitution by declaring parts of the 2000 amendment concerning Art. 78 invalid. This is practically a return to the 1994 constitutional provisions, at least as far as the report of the court indicates – the ruling is yet to be published in the Official Gazette.
This is an unprecedented case of judicial activism for Moldova and thus very controversial, independent of the general benefit of changing Art. 78 and abolishing the 3/5-majority provision for presidential elections. Furthermore, two controversies arise now: 1) age and 2) term limit. In the 1994 version of Art. 78, the age limit for presidential candidates was 35; up to now, the decision of the court does not indicate a return to this provision. Additionally Art. 78 Sec. 5 on the term limit was also not reinstated. It will be interesting to read the official ruling to find out if these two provisions were left unchanged, which would be – according to some news outlets – very convenient for further political intrigues (e.g. banning certain political actors because of their age to run for president).
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 With thanks to Nicole Gallina, who described a similar process in Ukraine also as Ping-Pong game (see Fruhstorfer/Hein 2016).
 This becomes even more interesting, when we believe the statement that some deputies did not even know the detailed provisions as can be seen in a comment of a non-communist member of parliament: “None of us had carefully read the law concerning the procedure of election of the president” (cited according to Quinlan 2002, 100).
 Ruling as part of the Alliance of European Integration III;