By the end of September, the President of the Republic of Moldova was again the center of a political standoff that has been the bane of the country for quite some time. For the fourth time since October 2017, the constitutional court suspended the President (Igor Dodon from the PSRM, Party of Socialist of the Republic of Moldova) temporarily. Three of these four times were due to the refusal by the President to appoint ministers elected by parliament. This newly found instrument of temporarily getting rid of the president as a veto player has profound institutional and legal ramifications and questions the power of this directly-elected president. To address these issues, this post presents the constitutional court’s involvement as a case of “judicialization” (see e.g., Hirschl 2008) of core political questions. This form of judicialization is not necessarily comparable to judicialization under democracy, as it only emphasizes the involvement of the court in “key political issues” (Mazmanyan 2015, 200) and not a transfer of power from parliament to the court. The refusal of the President to appoint a cabinet member is, at its core, a decision of checks and balances and should not be influenced by the judiciary. In the following, I will describe the constitutional background and process of suspending the president with its most recent recurrence in September 2018 as well as the short and long-term implications arising from this power struggle.
The 1994 Moldovan constitution established a semi-presidential system, more specifically a premier-presidential system. The presidency enjoys an array of de jure power tools and also ceremonial responsibilities. Among the important instruments to discipline the fragmented parliamentary parties is the president’s right to dissolve parliament after two failed investiture attempts. Furthermore, and this is of importance here, the president appoints the cabinet after a parliamentary vote of confidence and also after a cabinet reshuffle upon the proposal of the prime minister (Art. 98) (see Fruhstorfer 2016). This provision is particularly important, as it was initially introduced as part of the 2000 constitutional amendment that formed a parliamentary system. Parts of this amendment (in particular the election of the president) were declared unconstitutional in 2016. The original 1994 constitution allowed the president much less involvement in the process by only being able to accept the oath of newly elected cabinet members. Thus, the 2000 amendment clarified and increased the power of the president, a provision that was not changed in the process of declaring parts of the 2000 amendment unconstitutional. There was no specific constitutional provision that stipulated how many times the president can refuse the appointment. Yet the January 2018 ruling of the Constitutional Court de facto amended the constitution. In their ruling on the second temporary suspension, the court specified that the president can only decline a proposal for a cabinet appointment once and must appoint a possible second candidate. Failing to do so is a violation of presidential duties (Constitutional Court 2018). Failing to fulfill these duties is then the justification for a temporary suspension. And indeed, the constitution envisions this occurrence, but the procedure of including the constitutional court is highly unusual, as it is the sole prerogative of parliament (Art. 89).
The way temporal suspension was and is used in Moldova comes close to the observation Mazmanyan (2015, 208) offers for the post-soviet area in general: “The record of judicial involvement in post-Soviet politics shows that higher courts get meaningfully activated only in situations witnessing a true political competition and uncertainty about the winner in the competition.” This form of judicialization is however a new trend in Moldova, the constitutional court was until recently the example of a non-politicized court among the countries in the post-soviet region. With the now fourth decision of temporally suspending the president – in case he does not follow suit – the court embraces a trend of incidental decision making (Mazmanyan 2015, 208) in competitive political situations. This intervention exposes the court to the danger of being exploited and manipulated by political forces and facing the challenging time when “judicial involvement in politics is more often than not a byproduct of political pressure or manipulation of constitutional law and of the constitutional judiciary” (Mazmanyan 2015, 200). It is unclear whether the often claimed “direct political instruction” of political forces (read Vlad Plahotniuc, chairman of the PDM, Democratic Party of Moldova) applies in Moldova. In any case, the decisions made by the constitutional court since March 2016 indicate a problematic politicization of the judiciary that decides on political issues and uses its rulings to overcome political competition. This was seriously criticized in the most recent report of the Bertelsmann Transformation Index (BTI 2018).
What seems like an “inter-institutional deadlock” (Popșoi 2017) in a period of cohabitation was long rumored to be only a sham to disguise how Vlad Plahotniuc and President Igor Dodon have consolidated their power with the help of each other. Yet, the political standoff between the government and the constitutional court on one side and the president – at least superficially – on the other side, seems to be a mundane power struggle. Yet, mundane does not make it any less dangerous. The court’s involvement in this power struggle and the following judicialization of key issues of the competition inherent to a premier-presidential system are seriously damaging the political institutions and does not bode well for the future democratic development.
BTI (2018): Country Report Moldova, in: https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2018/pdf/BTI_2018_Moldova.pdf [last accessed October 8, 2018]
Constitutional Court (2018): Press Release. The President of Moldova may only once decline PM’s proposal of Cabinet reshuffle, in: http://constcourt.md/libview.php?l=en&idc=7&id=938&t=/Media/Noutati/The-President-of-Moldova-may-only-once-decline-PMs-proposal-of-Cabinet-reshuffle/ [last accessed October 8, 2018]
Fruhstorfer, Anna. (2016). Moldova. In Constitutional Politics in Central and Eastern Europe (pp. 359-387). Springer VS, Wiesbaden.
Hirschl, Ran. (2008). The judicialization of mega-politics and the rise of political courts. Annu. Rev. Polit. Sci., 11, 93-118.
Mazmanyan, Armen. (2015). Judicialization of politics: The post-Soviet way. International Journal of Constitutional Law, 13(1), 200-218.
Popșoi, Mihai. (2017). Moldovan President Igor Dodon Suspended by the Constitutional Court. https://moldovanpolitics.com/2017/10/25/moldovan-president-igor-dodon-suspended-by-the-constitutional-court/ [last accessed January 15, 2018]