Forcing of open doors. IPN Experts

In the program “Fabrika” broadcast by Publika TV on November 13, 2018, MP of the Democratic Party of Moldova (PDM) Eugeniu Nickiforchuck said the implementation of the Democratic leader Vlad Plahotniuc’s proposal to reduce the number of seats of MP from 101 to 61 and to enable the voters to recall the MPs will make the legislative body more efficient. According to the MP, the proposal to reduce the number of MPs forms part of a broad process of reforming the administration.  

From the MP’s statements, we understand that the referendum that is to take place simultaneously with the parliamentary elections of February 24, 2019 would be consultative. Furthermore, the Democratic leader’s return to the initiative to recall MPs can mean only one thing – annulment of the mixed electoral system and introduction of the majority voting system, as it proposed on March 6, 2017. The recalling of MPs by the voters is, as a matter of fact, impossible outside the majority voting system. So, the intention is to return to the Soviet electoral system and this is confirmed by the assertion “It will be much easier to control the work of MPs”. “If the people’s vote is positive, we will discuss with experts and with the Venice Commission to find a correct legal formula and to implement the people’s wish,” stated Eugeniu Nickiforchuck. So, it is worth trying to understand what goal is pursued by the PDM?

First of all, the Constitutional Court, by its Judgment No. 24 of 27.07.2017, held that the results of the national consultative referendum does not produce legal effects. So, if it is only about the voters’ wish, this can be found out rapidly by opinion polls without costs and complications. We can presume that any poll would show that the citizens approve of the reduction in the costs associated with the functioning of public institutions, including the reduction in the number of MPs. If the goal is to persuade the political class to decrease the number of MPs so as to obtain broad support for the PDM’s initiative from political parties, such support actually exists without polls and referendums. In 2016, the Platform Dignity and Truth (PDA) collected ~400,000 signatures of citizens in favor of a referendum on the reduction in the number of MPs. In 2017, the informal leader of the Party of Socialists of the Republic of Moldova (PSRM) Igor Dodon initiated a referendum to this effect, being sure of the people’s support. So, the PDM follows a beaten track, forcing actually an open door.

Secondly, what is the answer expected by the PDM from the Venice Commission? We could guess an answer. For example, the Venice Commission could say: Why do you ask our opinion if you anyway do as you want. Such an answer would be absolutely legitimate and the ignoring by the PDM of the recommendation concerning the replacement of the electoral system is a conclusive proof. If the Venice Commission grants the PDM’s request, we can intuit the following answer: It is the sovereign right of the Republic of Moldova to decide the number of members of the country’s Parliament, etc. It would be strange for it to answer in a different way. As to the recalling of MPs by the citizens, we can also presume, based on the multiple documents issued by the Venice Commission on the issue, that it will say the following: To be able to recall MPs, Article 68 of the Constitution concerning the representative mandate, providing that any imperative mandate is nil, will have to be eliminated. The representative mandate will have to be replaced with the imperative mandate. So, if the citizens believe that the MPs do not do what they should according to the opinion of media holdings, they should be recalled. But the Venice Commission would not recommend something like this as no European, democratic country has such constitutional provisions. And this is why: the work Constitutions d’Europe Centrale, Orientale et Balte, which was devoted to the new European democracies and was published in 1995 under the auspices of the Council of Europe, says: even if the state power in the constitutions of the former Communist states was proclaimed as belonging to an Assembly chosen by the people, the power was actually fully held by the ruling party through the imperative mandate based on which MPs can be recalled. So, we will wait for the PDM leaders to address the Venice Commission to convince ourselves of this.

Thirdly, the Judgement of the Constitutional Court No. 1 of 22.09.2014 explicitly says:

- If the holding of a referendum is banned 60 days before and 60 days after the elections in order to avoid confusion, a fortiori referendum (any type of referendum) cannot take place on the given day;
- The merging of the parliamentary elections with the referendum risks inducing a state of confusion among the voters, who would have to vote with a large number of ballots and would have a more complex task – to mark their choice on a number of ballots. This will lead to a considerable increase in the period of time needed for voting. The complexity of voting operations can lead to the exclusion of voters who will be unable to vote during the allotted period of time, until the closing of polling places, independently of their will;
- The Code of Good Practice in Electoral Matters (CDL-AD(2002)023, adopted by the Venice Commission on October 18-19, 2002), provides that the voting procedure should remain as simple as possible so as to ensure the voter’s freedom to express their will and to ensure the effectiveness of the right to vote and in free elections.

So, it is very clear, according to the Constitutional Court, elections and referendums cannot be held the same day. Or the Court could change its opinion? We will see this too.

We thus return to the question – what is the PDM’s actual goal? The answer seems to be evident – exactly what the Liberal Democratic Party of Moldova (PLDM) aimed to do before the parliamentary elections of November 30, 2014. The PLDM then aimed to make use of the find applied by the President of Romania Traian Băsescu at the presidential elections of November 22, 2009. To have a powerful drive in the electoral competition, Traian Băsescu decreed the holding of a consultative referendum on the switchover from a bicameral parliament to a unicameral one and the reduction of the number of MPs by about 300. Even if that plebiscite was validated, its outcome was never implemented. But the find helped Traian Băsescu beat his Social-Democratic opponent Mircea Geoană. A propos, this was supported by the PDM by the slogan – Remember three words “Mircea Geoană – President”.

This is what the PLDM wanted to do in 2014, but the Constitutional Court didn’t allow it to. This is probably what the PDM wants to do at the parliamentary elections of February 24, 2019.

IPN Experts

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