The debates held on June 27 as part of the talk show “Fabrika” on Publika TV channel suggested a solution for overcoming the situation generated by the invalidation of the Chisinau early mayoral elections by the Moldovan judiciary. The solution was proposed by the deputy chairman of the Democratic Party of Moldova (PDM), ex-minister of justice Vladimir Cebotari: politics should be separated from justice!
Let’s try to do this even if we realize that the intention itself to separate politics from justice, especially in this case, is a very difficult thing. The electoral process is eminently political and involves the most important politicians, political forces and the bearers of sovereignty – the citizens who can express their political preferences namely in elections. Secondly, the election results, if they are validated or invalidated by courts of law, have major political consequences. The first question appears here – if the obligation of the judiciary is to validate an eminently political process that no one disputed, either a citizen, an electoral competitor or a specialized electoral body, why should the judiciary look for reasons for not validating this?
The answer to this question is ambiguous – either the reasons are political or noble the letter of the law should triumph, regardless of the dissatisfaction and subsequent consequences. The first reason is the one highlighted by election runners, a series of political parties, thousands of voters who took to the streets to protest against the election invalidation, representatives of the development partners, etc. The call made by the deputy chairman of the PDM Vladimir Cebotari is to concentrate on the second reason – plea for the triumph of the letter of the law in any circumstances. This intention is laudable and makes us to positively assess the proving arguments of the courts of law – that both of the candidates broke the law by campaigning on the election day and, respectively, by influencing their results. The unpermitted influencing of the election results ends with the invalidation of elections. Such argumentation should convince us of the impartiality of our judiciary. Indeed, in the circumstances ascertained by the courts of law, the elections would have been also invalidated if they had been won by Anderi Nastase’s rival Ion Ceban. The power of the approach – the letter of the law should triumph! – resides namely in this. We convinced ourselves yet that the electoral contenders, several thousand protesting citizens and the representatives of the development partners do not understand or pretend not to understand this.
In such circumstances, we should only resort to a practically banned thing – to analyze the provisions of the electoral legislation and the national and international experience in terms of electoral matters against the arguments and election invalidation judgements of our courts. This is an ingrate occupation that casts doubt on our judiciary. The only excuse in this case is that the Constitutional Court’s ruling of December 13, 2016 expressly providers: “particular irregularities are possible in an election campaign, but the viability of the elections depends on the size and scale of these irregularities ascertained by the authorities of the state”. As the texts of the Constitutional Court’s rulings have the status of law, it is important to see the conditions in which the elections can be invalidated: 1) the elections can be nullified only if the voting and tabulation of results took place fraudulently; 2) not any fraud in the electoral process is equal to the rigging of elections, only the fraud that can influence the election results; 3) the application to nullify the elections must be argued and accompanied by evidence on which it is based. 4) All these conditions should be met cumulatively.
As the Constitutional Court examines exclusively law matters, not circumstances, the principles elaborated in its judgement should have been mandatorily applied in the case of the invalidation of the recent early mayors elections held in Chisinau municipality. In this regard, there should have been provided an application accompanied by documents proving that the frauds influenced the election outcome. The national experience in electoral matters knows the invalidation of the mayoral runoffs in Buteni village in 2008. Then the courts invalidated the elections based on a challenge filed by the candidate who lost. The most recent international experience invoked in support of the decisions of the Moldovan courts of law is the invalidation of the presidential runoffs in Austria on May 22, 2016. But in this case too, the invalidation took place based on a challenge submitted by the beaten candidate who provided a series of convincing arguments that were presented in a document with over 150 pages: the postal voting results were tabulated before the election day; the results of postal voting were published by the electoral body before the voting on the election day ended; the prescribed measures to ensure the secrecy of postal voting weren’t taken, etc. These arguments were considered sufficient by the Constitutional Court to rule that the final election outcome could have been influenced by the invoked inconsistencies as the number of correspondence votes was about 20 times higher than the difference in the votes polled by the two candidates in the runoffs.
As to the election invalidation judgements of our courts of law, these were to probably take into consideration the fact that the legal limitation on campaigning on the election day is yet restriction of a basic constitutional right - freedom of opinion and expression, for particular reasons. According to specialty literature, this restriction is applied only with the aim of preventing the disturbing of public order on the election day and the day before this, for avoiding eventual conflicts. That’s why the influencing of the election outcome by agitation on the election day should have been assessed through the consequences for public order. Paradoxically, the public order was disturbed not by the agitation, but by the court decisions on the issue.
Finally, we could say that if we follow the PDM deputy chairman’s call to separate politics from justice, we reach the conclusion that the courts of law, in the process of invalidating the early mayoral elections held in Chisinau municipality, didn’t take into account the cumulative factors elaborated by the Constitutional Court for adopting such a decision. Also, the courts didn’t take into account that in any case of competition, the exercise of a basis right, not its legal limitation should be given priority. So, if we follow the purely juridical line, we ascertain that our courts of law ignore: the mandatory decisions of the Constitutional Court concerning the invalidation of any election; the generally accepted essence of the prohibitive norms for particular basic rights, such as the right to opinion and expression; the national and international election invalidation experience. If so, why should we be surprised at the fact that the invalidation of the mayoral elections in Chisinau slipped from the judicial sector to the political sphere?
There is something more to be said about the unique performance of the out courts of law. In the debated case, these assumed a double role: a) of political-juridical philosophy departments that ascertain deviations from the legal norms in a general, abstract way; and b) of justice bodies that in the name of the law give sentences in favor of abstract justice. This deserves to be appreciated, especially because it seems that our courts of law, for the first time in history, invalidated an election for the reason that the electoral agitation on the election day abstractly influenced the election outcome. Isn’t this a reason for pride that our judges hurried to invoke?