Unison in Constitutional Interpretation: Doctrinal Developments by the Lithuanian and Moldovan Constitutional Courts

ORIGINAL ARTICLE

Jednomyślność w Interpretacji Konstytucyjnej: Doktrynalny Rozwój poczyniony przez litewskie Toma Birmontiene i mołdawskie Trybunały Konstytucyjne Professor of Mykolas Romeris University, Vilnius, former judge of 15.09.2016 28.11.2016 30.12.2016 the Constitutional Court of Lithuania Article history: Received: Accepted: Published: (2005-2014).

Abstract: This article is devoted to the analysis of some decisions of the Constitutional Courts of Lithuania and of the Republic of Moldova, which, according to the author of this article, are indicative of a “constitutional unison”, as the courts, in dealing with similar issues, delivered comparable judgments at times knowing that similar decisions have been rendered by the other court and, at times, possibly, without being fully aware of the existence of similar rationales by the other court, since certain of the aforementioned decisions are separated by more than a decade. The reasons determining this unison, its consistency as well as other issues represent the object of the present research, which, due to its limited scope, can be considered a lead-in to a broader analysis of these matters.

Keywords: constitutional court, constitutional interpretation, form of governance, constitutional jurisprudence, constitutional borrowing, constitutional conflicts

Streszczenie: Artykuł poświęcony jest analizie niektórych wyroków Litewskich i Mołdawskich Try- bunałów Konstytucyjnych, które zdaniem autora niniejszego artykułu, wskazują na “konstytucyjną jednomyślność”, ponieważ sądy w czasie rozpatrywania podobnych spraw wydały porównywalne wyroki. Niekiedy wiedząc, że podobne orze- 47 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

czenia zostały wydane przez inne sądy, a czasem, być może, nie będąc w pełni świadomym istnienia podobnych orzeczeń wydanych przez inne sądy, ponieważ niektóre z wyżej wymienionych wyroków dzieli więcej niż dekada. Powody deter- minujące tą jednomyślność, spójności, a także inne kwestie stanowią przedmiot niniejszego badania, które ze względu na ograniczony zakres, mogą być uznane za wprowadzenie do szerszej analizy.

Słowa kluczowe: Trybunał Konstytucyjny, interpretacja konstytucyjna, forma rządzenia, orzecz- nictwo konstytucyjne, konflikty konstytucyjne

Reasons determining the similarity death penalty, irrespective of the fact that it drew of some decisions in constitutional certain criticism due to its argumentation2, became jurisprudences. a model for other constitutional courts, such as the Lithuanian Constitutional Court3 or South Af- rican Constitutional Court,4 in rendering their deci- At the end of the 20th century and the beginning of sions on the non-compliance of the death penalty the 21st century, after regaining their statehood or with constitutional provisions. restoring the democratic setup of the state and its consolidation in their newly adopted constitutions, Up to now cooperation among constitutional Eastern and Central European states witnessed courts has gained important institutional dimen- the spread of constitutional review, and therefore sions. In the realm of international cooperation cooperation between constitutional justice institu- involving various constitutional courts, a sig- tions became indispensable. Starting their activity nificant role is played by the Venice Commission as novices and lacking appropriate experience, (European Commission for Democracy through newly established constitutional courts studied Law) which promotes cooperation among con- the case law of the already established constitu- stitutional courts and similar institutions. Such tional control institutions, looked at and learned overwhelming international organisations as the from the activity and decisions of each other, es- World Conference on Constitutional Justice, the pecially due to the fact that some issues related to the development of statehood were common; in 2The criticism of the arguments of the judgment of the Constitu- dealing with these issues, the experience of other tional Court of Hungary was not against the ruling itself, it dis- constitutional courts served as a particularly valu- cusses the way of constitutional interpretation. Se: Janos Kis, Constitutional Democracy, CEU Press. Budapest, New York. able additional source of constitutional law. One of 2003, p. 253-259. Gábor Attila Tóth, Túl a szövegen: Értekezés a the earliest judgments of the Constitutional Court magyar alkotmányról (Beyond the Text: A Treatise on the Consti- tution), Osiris, Budapest, 2009, pp 51-53. of Hungary1 concerning the constitutionality of the 3The ruling of the Constitutional Court of Lithuania of 9 December 1998. Online access: www.lrkt.lt 1Decision of the Constitutional Court of Hungary no. 23/1990 (X. 31.) on the abolition of death penalty (http://www.mkab.hu/letol- 4S. v Makwanyane and Another (CCT3/94) [1995] ZACC 3; (Judg- tesek/en_ 0023_1990.pdf) ment of the Constitutional Court of South Africa of June 6, 1995). 48 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

European Conference of European Constitutional denomination, at the core of this phenomenon Courts, the Association of Constitutional Justice lies the aim to make use of the case law for- of the Baltic and Black Sea Regions and other mulated by another court in cases requiring organisations were formed which are devoted to the resolving of complicated constitutional re- the examination of the activity of constitutional view issues. The area of constitutional rights courts and of the decisions adopted thereby. features even greater commonness resulting from the law of the European Convention on If we leaf the pages of the constitutions of Human Rights (hereinafter referred to as the democratic states, we will find a great deal of Convention law) and the activity of and prec- commonness; this is determined by the es- edents formulated by the European Court of sence of democratic states, founded on re- Human Rights (hereinafter referred to as the

Cooperation among constitutional courts has gained important institutional dimensions. spect for human rights, as consolidated in ECtHR). The globalisation of law, unification of their respective provisions, and by the consti- different fields of law, influence of international tutional principles of establishment, separation treaties and EU law, including the activity of and balancing of the branches of state power. the ECtHR, determine the courts, when faced The principles enshrined in constitutions with with similar constitutional review matters, to regard to the establishment of constitutional deliver the corresponding decisions. This is control institutions, their competences and evident not only in relation to the ordinary law. functioning also have plenty in common. Since Precedents formulated by the ECtHR bear par- constitutional law provides the rules to formu- ticular significance; it is not a rare occurrence late the key legal principles that are universally that they determine a situation where the deci- understood and recognised in democratic sions of constitutional courts are based on the states, such as rule of law, separation of state principles elaborated by the ECtHR and, thus, powers, independence of courts and other inevitably lead to the proximity or similarity of principles, their interpretation in constitutional jurisprudences.6 However, the doctrine of the jurisprudences unavoidably entails doctrinal margin of appreciation makes it possible for similarity, or even uniformity. In scholarly con- the individuality of national constitutional law stitutional doctrine,5 similarity in judicial deci- to find its expression even in such decisions. sions or in constitutional doctrines is identified as legal borrowing, constitutional implanting, 6The influence of Convention law and EU law on the constitutional etc. Despite the existing differences in their jurisprudence is widely analyzed in general and national reports of the XVIth Congress of the European Constitutional Courts. See: C. Grabenwater The co-operation of Constitutional Courts in 5See : Vlad Perju. Constitutional Transplants, Borrowing and Europe – Current Situation and Perspectives. General report and Migrations, in Oxford Handbook of Comparative Constitutional Outline of main Issues. XVI th Congress of the Conference of Eu- Law, M. Rosenfeld and A. Sajo (ed), Oxford: Oxford University ropean Constitutional Courts. The Cooperation of Constitutional Press, 2012, p. 1304-1327. Courts in Europe, Volume I, Verlag Osterreich, 2014, p. 35-62. 49 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

Constitutional courts deal not only with purely scope of their implementation; ultimately, the legal but also with legal-political issues. The principles inspired by the Convention law, which constitutional setup of states does not avoid overlap with the criteria entrenched in the consti- certain specificity that is characteristic to- par tutions, are understood as universal and uniform, ticular states or small groups or states. Thus, for and precedents developed by the ECtHR are re- instance, any typology of forms of government garded as sources of national constitutional law. in the states inevitably contains exceptions that are typical to a particular state or several particu- The jurisprudential cooperation of constitutional lar states. Nevertheless, even in this area, deci- courts assumes various forms. It is rather com- sions adopted by courts demonstrate a certain mon that courts themselves indicate that, in degree of similarity. What are the reasons be- deciding one or another issue, they drew on the hind this? Is this phenomenon determined by an specific decision or precedent worked out by an- analogous legal or, at times, political situation, or other court.7 But, at times, a nearly analogous de- by the decision of the courts to follow the juris- cision is reached without actual awareness of the prudence of another constitutional jurisdiction existing corresponding jurisprudence of another instance, thereby creating the preconditions for court, in particular, when such decisions are sep- the development of international constitutional arated by a long period of time – more than a legal precedents. The question is whether con- decade. This type of unison in the jurisprudence stitutional courts, when being aware of the exist- of constitutional courts finds its manifestation in ing precedents, should follow these precedents some decisions handed down by the Lithuanian and leave themselves a broad margin of appre- and Moldovan Constitutional Courts. ciation, or whether, to the contrary, constitutional jurisprudence allows no such precedents, since Particularities related to forms the constitution and constitution law form the of state government. The core of national law and define the foundations constitutional powers of the of state sovereignty; therefore, the constitutional President of the state in the control institution must exclusively draw on the formation of the Government. explicit and implicit principles consolidated in the constitution and invoke all other legal sources, The ruling of the Constitutional Court of Lithu- including international, solely as a source of in- ania of 10 January 1998 and the judgment of the spiration or a supplementary source substanti- Constitutional Court of the Republic of Moldova ating the specific line of reasoning taken by the of 29 December 2015, which can be viewed as court. However, such a conservative approach, examples of constitutional unison, were adopted first and foremost, can be repudiated in view of with a difference in time of more than a decade; the above-mentioned influence of the Conven- however, they share considerable proximity with tion law on constitutional jurisprudences; in addi- regard to the questions they dealt with while an- tion, this approach does not square with the fact swering which form of government of the state that the area of constitutional rights in the states

founded on the principles of the rule of law and 7F.e. In the ruling of the Constitutional Court of Lithuania of respect for human rights has seen the forma- 28 September 2011 ( On the State Family Concept) examples of jurisprudence of constitutional courts of Czech Republic, tion of common uniform criteria for human rights Slovenia, Croatia, Hungary, Federal Republic of Germania, protection and, especially, the protection of the Constitutional Council of France are analyzed. 50 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

is underpinned by the constitutional provisions the solution of the matter is placed before the and what constitutional powers are conferred on constitutional court. the President of the state in forming the Govern- ment and nominating a candidate for the office The capability of the constitution to provide for of Prime Minister. Although the powers of the all possible circumstances or to envisage all President in forming the Government and decid- possible twists and turns in the interrelation- ing on a candidate for the office of Prime Minister ship of state powers is disputable. The consti- to be approved by the Parliament in democratic tution is an act of constituent power, grounded states are generally regulated under specific on the experience of the past but designated to constitutional provisions, these powers are often influence, in an effective way, the future of the determined in parallel by certain constitutional state. Thus, it is doubtful whether the constitu-

Unison in the jurisprudence of constitutional courts finds its manifestation in some decisions handed down by the Lithuanian and Moldovan Constitutional Courts. conventions, and this is particularly the case in tion is capable to envisage all vicissitudes in common law systems. Such constitutional con- relations between the branches of state power. ventions are very important in establishing the In cases of disagreements between state au- balance between state powers and they are thority institutions, a reasonable question aris- serving in avoiding constitutional conflicts. Thus, es whether an amendment to the constitution for instance, French constitutional doctrine dic- is necessary in all these cases, or whether the tates certain rules in this respect.8 However, in the same effect can be achieved by the constitu- absence of such conventions, or in the event of tional control institution by means of interpret- disagreements between the politicians, interpre- ing the provisions of the constitution. tation of constitutional provisions by the constitutional control institution becomes unavoidable. In certain cases, the interpretation of the pro- Usually, this situation occurs where the alteration visions of the constitution in the acts of the of constitutional provisions is complicated and constitutional court not only makes it possible to avoid the arising conflicts, it also gives 8The keystone principle of democratic states is that the Govern- guidelines for further cooperation between ment must express the will of political majority of the Parliament. The President of France has never appointed someone else then state authority institutions. Such successful the candidate proposed by parliamentary majority, even in cases cases can be considered to include the ruling when it was forged by his adversaries or in spite of the presidential party being represented by most MPs, and the parliamentary major- of the Constitutional Court of Lithuania of 10 ity was formed by two smaller parties. This happened three times January 19989: it formulated the doctrine upon in the last 30 years, the most famous case being in 1986, when the socialist François Mitterrand appointed as Prime Minister his adver- which the relations of the executive power (the sary Jacques Chirac (and later also appointed Eduard Balladur, and some years later the President Chirac appointed as Prime Minister the socialist Lionel Jospin). Such practice is regulated by interpretive 9The ruling of the Constitutional Court of the Republic of Lithuania constitutional convention. of 10 January1998. Online access: www.lrkt.lt. 51 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

President and the Government) have been rangement of their reciprocal interaction. The based since then, and provided the answer to President is elected in direct elections. The the question as to the form of government of Lithuanian constitutional system consolidates the state, which is implicitly consolidated in the the principle of the responsibility of the Gov- provisions of the Constitution. ernment to the Seimas, which determines the manner of the formation of the Government; Conflicts between presidents and prime- min the constitutional framework of the branches isters over appointment related issues are not of state power entails that only the Govern- rear in the countries that adopted new consti- ment that has the confidence of the Seimas tutions and constructed principles of govern- may accomplish its powers based on the prin- ess based on separation of powers.10 In Lithu- ciples of parliamentary democracy, which are ania, following the election of the President, consolidated in the Constitution. the conflict between the Prime Minister and the President concerning the powers of the Presi- In the above-mentioned ruling, the Consti- dent (and the Parliament) in the appointment tutional Court interpreted the constitutional and release of the Prime Minister (and the Gov- competences of the President in relation to ernment) from office resulted in constitutional the appointment of the Prime Minister (and the dispute and, consequently, led to the adoption Government)11 to the effect that the President of of the ruling of the Constitutional Court of 10 the Republic cannot freely choose candidates January 1998. Upon interpreting the provisions for the office of Prime Minister or ministers, of the Constitution, the Constitutional Court since the appointment of these officials is in all held that the form of government in Lithuania cases dependent on whether the Seimas (Par- is a parliamentary republic with certain ele- liament) has confidence in or distrust of them. ments characteristic of a semi-presidential re- The Constitutional Court also stressed that the public. In this ruling, the Constitutional Court fact that the President of the Republic, as part of clarified that, based on the competence of executive power, has some political possibilities state institutions as established by the Consti- of influencing the formation of the structure of tution, the model of government of the State the Government should not be ignored, either. It of Lithuania should be categorised as the form of parliamentary republic. At the same time, 11In the ruling of 10 January1998, the Constitutional Court anal- the Constitutional Court noted that the form of ysed the relations between the President of the Republic and the government of the State of Lithuania also has Government and stressed that they are regulated by the norms of the Constitution. Under the Constitution, upon the approval certain characteristics of the so-called mixed of the Seimas, the President of the Republic appoints the Prime (semi-presidential) form of government. This Minister, charges him/her with forming the Government, and ap- proves the composition of the Government; upon the approval of is reflected in the powers of the Parliament the Seimas, the President removes the Prime Minister from office; (Seimas), the powers of the Head of State – accepts the powers returned by the Government upon the election of a new Seimas and charges the Government with exercis- the President of the Republic, and the powers ing its functions until a new Government is formed; accepts the of the Government, as well as in the legal ar- resignation of the Government and, when necessary, charges it with continuing to exercise its functions or charges one of the Ministers with exercising the functions of the Prime Minister until 10 See: G. A. Toth. From Uneasy Compromises to Democratic a new Government is formed; the President of the Republic, upon Partnership. The Prospects of Central European Constitutional- the resignation of the Government or after it returns its powers, ism ?, “European Journal of Law Reform” 2011 (13)1, p.80-96; within 15 days, proposes a candidate for the office of Prime Min- p. 84-85. ister for consideration by the Seimas, etc. 52 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

should be mentioned that the argumentation in In the judgment at issue, the Constitutional the ruling contains, among others, references to Court of Moldova widely analysed the consti- French constitutional case law.12 tutional grounds for the constitutional obliga- tion of the President of the Republic of Mol- The Constitutional Court of the Republic of dova in designating a candidate for the office Moldova, in its judgment of 29 December of Prime Minister. The Constitutional Court 2015,13 faced analogous issues concerning examined the constitutional arrangements of the form of government of the state, implied France, the USA, Germany, Italy, the Czechia by constitutional provisions, and the constitu- and other countries. The Constitutional Court tional powers granted by these provisions to emphasised that, in no parliamentary republic, the President of the state in forming the Gov- the President elected by the parliamentary ma- ernment and in cases of choosing a candidate jority is entitled to dissolve the Parliament for for the office of Prime Minister for a new Gov- the reason that the absolute majority of mem- ernment.14 Regardless of a decade-long pe- bers of the Parliament did not accept his/her riod separating these decisions, their lines of candidate for the office of Prime Minister. argumentation share a great deal of similarity; although the judgment of the Moldovan Con- The Constitutional Court of the Republic of stitutional Court contains no direct reference Moldova held that the relevant constitutional to the ruling of the Lithuanian Constitutional provisions (Article 98.1 of the Constitution) Court of 10 January 1998, both these deci- should be interpreted taking into account the sions can be regarded as illustrating unison in parliamentary form of government of the Re- constitutional doctrines. public of Moldova. The Court found that the constitutional provisions (Article 98.1 of the Constitution) provide for the exclusive pre- 12In the mentioned ruling, the Constitutional Court noted that rogative of the President of the Republic to the constitutional regulation of the returning of the powers of the Government after the election of the President of the Republic designate a candidate for the office of Prime reminds, at least partly, of the constitutional tradition of the Third Minister. At the same time, the Court noted French Republic, when the Government there would resign after a parliamentary election and after a presidential election. The res- that, although it is exclusive, the designation ignation after a presidential election was called the “resignation of prerogative cannot be discretionary, since the courtesy” (démission de courtoise). After the “resignation of courtesy”, the Government had to be approved anew. This procedure President may designate a candidate for the is said to be meaningful due to the relation of the Government office of Prime Minister only following consul- with the Head of State, and that it reflects certain tendencies in the development of the model of government of the state. tations with parliamentary factions. The es- sential element of the procedure of forming the 13 Judgement of the Constitutional Court No.32 of 29.12.2015 on Government is the vote of the Parliament; the constitutional review of the Decree of the President of the Repub- lic of Moldova No. 1877-VII of 21 December 2015 on appointing a Government will only be politically responsible candidate for the position of Prime-minister // http://www.const- before the Parliament, which can dismiss it. court.md/ccdocview.php?tip=hotariri&docid=553&l=ro

14The complaint addressed to the Constitutional Court of Moldova Following this reasoning and taking into ac- mainly concerned the conditions for performing the duties of the President of Moldova on designating a candidate for the office of count the principles set out in its case law, the Prime Minister and referred to a set of interlinked constitutional Moldovan Constitutional Court held that, in or- principles, such as democracy, representative mandate and re- lationships between the Parliament and the President of the Re- der to secure his constitutional powers to pro- public while appointing the Prime Minister. pose a candidate for the office of Prime Minis- 53 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

ter, the President of the Republic, elected by a the Republic must designate a candidate sup- parliamentary majority,15 must ensure, through ported by this majority; and only when there is consultations with parliamentary factions, both no absolute parliamentary majority forged, the the support of the parliamentary majority and President of the Republic of Moldova is under the possible constructive cooperation with the the duty, following consultation with parlia- minority, which is in the opposition. mentary factions, to designate a candidate for the office of Prime Minister, even if parliamen- The Constitutional Court appreciated the inter- tary factions do not agree with the proposal of pretation according to which the discretionary the President. right of the President to designate a candidate for the office of Prime Minister as legally- il The constitutional doctrine formulated in this logical. At the same time, the President can- judgment regarding the powers of the Presi- not be denied the right to assess the character, dent of the Republic to designate a candidate competences, experience and, ultimately, the for the office of Prime Minister to be approved ability of a person, either politically involved or by the Parliament in cases of forming a new not, to lead the Government and to attract the Government can also be applied to the forma- political support of the parliamentary majority, tion of the Government following parliamentary which will support him/her for the tenure of the elections, as well as where a new Government legislature, but has no constitutional support to is formed following the resignation of the Gov- impose their own candidate. ernment or after a motion of no confidence is voted by the Parliament. In the event of the formation of the Govern- ment as a result of parliamentary elections, the In considering the constitutional doctrine that President cannot but recognise the outcome of was formulated in the judgment of 29 Decem- the popular vote, the designation being carried ber 2015 regarding the powers of the President out as follows: the President takes note of the of the Republic to propose a candidate for the official results of the elections and entrusts the office of Prime Minister to be approved by the mandate to form the Government to a person Parliament, it is also important to analyse the who has been proposed by an absolute majori- doctrine developed by the Constitutional Court ty in the Parliament. Therefore, either a majority of the Republic of Moldova in its judgment of 22 of political forces in the Parliament is formed or April 201316 regarding the powers of the Presi- the Parliament is dissolved and early elections dent of the Republic to appoint an acting Prime are conducted. Minister. In this judgment, the Court considered the issue concerning the appointment of the The Constitutional Court came to the conclusion that, in the event of an absolute parlia- 16Judgment No. 4 of 22 April 2013 on constitutional review of the mentary majority being forged, the President of Decrees of the President of the Republic of Moldova No. 534- VII of 8 March 2013 on the dismissal of the Government, in the part concerning staying in office of the Prime Minister dismissed 15In the period of the adoption of the judgment of 29 December by a motion of no confidence (on suspicion of corruption) of 8 2015, following the constitutional reform of 2000 and until March March 2013 until the formation of the new government, and No. 2016, under the provisions of the Article 78 of the Constitution of 584-VII of 10 April 2013 on the nomination of a candidate for the the Republic of Moldova of 1994, the President had to be elected office of Prime Minister // http://www.constcourt.md/ccdocview. by the parliamentary majority. php?tip=hotariri&docid=443&l=en 54 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

ad interim Prime Minister upon the resignation ment of 29 December 2015 should, first of all, of the Government in the Parliament following be assessed in the context of the constitutional a motion of no confidence on the grounds of regulation of the Constitution of the Republic suspected involvement of its members in cor- of Moldova that was in force at the time of the ruption. In the judgment at issue, the Constitu- adoption of the said judgment, i.e. at the time tional Court interpreted the provisions of Article when the President of the Republic, following 101(2) of the Constitution of the Republic of the constitutional amendments of 2000, had to Moldova. When formulating the doctrine in rela- be elected in the Parliament. In its judgment of tion to the appointment of the ad interim Prime 4 March 2016,17 the Constitutional Court of the Minister, the Constitutional Court pointed out Republic of Moldova ruled the constitutional that, in the event of the resignation of the Gov- amendments related to the modality of presi- ernment upon the expression of no confidence dential elections to have been in conflict with on the grounds of the suspicion of corruption, the Constitution; consequently, the previous the President of the Republic may not appoint constitutional provision that the President must for the office of Prime Minister on a temporary be elected in direct elections was upheld.18 basis the Prime Minister of the Government that has been dismissed on the said grounds of sus- The constitutional amendments of 200019 pected corruption, and must appoint another changed the system of election of the Presi- member of the Government whose integrity has dent from direct elections to elections by the not been affected. In this case, the President is legislature with the vote of 3/5 of its members. not obliged to consult parliamentary factions for As a result, the amendments to the Constitu- the nomination of the ad interim Prime Minis- tion that anticipated a different and more com- ter. The Constitutional Court of the Republic of plicated system of the election of the President Moldova also mentioned that nothing forbids caused political instability.20 In its judgment of the President to consult the opinion of parlia- 4 March 2016, the Constitutional Court, after mentary fractions referring the selection of the examining the procedural and substantive ele- member of the Government to be nominated as ad interim Prime Minister. 17 Judgment No. 7 of 4 March 2016 on constitutional review of certain provisions of Law No. 1115-XIV of 5 July 2000 amend- Thus, differently from the situation when a new ing the Constitution of the Republic of Moldova (modality of electing the President) // http://www.constcourt.md/ccdocview. Government is formed (following parliamen- php?tip=hotariri&docid=558&l=en tary elections or for other reasons that led to the resignation or removal of the Government), 18Ibidem in the event of temporary substitution for the 19Law No. 1115-XIV of 5 July 2000 on amending the Constitution Prime Minister, the President of the Repub- of Moldova. lic has no duty to consult the parliamentary 20After the 2009 parliamentary elections in Moldova, no party was fractions and has the discretionary power to able to form a majority and create a coalition needed to secure 61 choose a member of the cabinet of ministers votes for the presidential candidate. Due to the fact that it was not possible to elect the President of the Republic, from 2009 until to act as ad interim Prime Minister. 2012, these duties were exercised by acting Speakers of the Par- liament, and early elections to the Parliament had to be held due to the fact failing to elect the President; as a consequence, the The constitutional doctrine formulated regard- Parliament was dismissed. Mr. Timofti was elected the President ing the powers of the President in the judg- of the Republic of Moldova only on 16 March 2012. 55 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

ments, not only ascertained the failure to follow elected not in the Parliament but in a general the procedure of the adoption of the amend- direct election. ment to the Constitution but also emphasised, inter alia, that the challenged amendment of In the judgment of 29 December 2015, when Article 78 generated a rapture of the consti- interpreting the powers of the President to tutional unity, as it failed to secure the normal nominate a candidate for the office of Prime functioning of the presidential institute and Minister to be approved by the Parliament, the generated an imperfect system of government, Constitutional Court of Moldova underlined, as and after examining different aspects of the one of the main arguments, the procedure of constitutionality of the law amending the Con- election of the President of the Republic, which stitution, the Constitutional Court declared it to affects the content of presidential powers. It have been inconsistent with the Constitution. should be noted that, when the Constitution In this judgment, the Constitutional Court de- was amended in 2000, amendments affected scribed the situation that resulted after declar- not only the modality of election of the Presi- ing the amendment to the Constitution as un- dent but also the powers of the President.21 constitutional and stressed that the wording of The latter amendment was not dealt with in Article 78 of the Constitution applicable prior to the judgment of 4 March 2016 (neither was this the entry into force of the challenged law must matter contested by the petitioners). In view of become applicable again, so the President of the aspects of the constitutional amendments the Republic had to be elected by popular vote. of 2000, the assumption can be drawn that the Constitutional Court of Moldova possibly did Thus, in examining the relevance of the doc- not examine this matter due to the fact that trine at issue, it is important to be aware of the the amendment concerning the powers of the analysed constitutional doctrine as formulated President, which envisaged the narrowing of in the judgment of 29 December 2015 by the the powers of the President with respect to the Moldovan Constitutional Court in relation to Government, was reviewed in the conclusion the powers of the President of the Republic of the Constitutional Court of 199922 assess- in forming the Government, which was inter- ing the submitted draft amendments to the preted by taking account of the previous mo- Constitution; the draft amendment concerning dality of presidential elections, as well as to be the above-mentioned aspect during the pro- aware of how this doctrine squares with the cess of adoption in the Parliament remained currently existing, already changed, constitu- unchanged; therefore, the formal grounds for tional setup, influenced by the judgment of the adopting such amendments to the Constitu- Constitutional Court of Moldova of 4 March 2016, by which, as mentioned before, certain 21 amendments introduced in 2000 to the Con- Law no. 1115 of 05.07.2000 on the amendment of the Consti- tution of the Republic of Moldova; Monitorul Oficial no. 88-90 stitution of Moldova in relation to the modality of 28.07.2000 // http://lex.justice.md/index.php?action=view&- of the election of the President of the Republic view=doc&lang=1&id=311032

were ruled to have been unconstitutional. Ac- 22Opinion of the Constitutional Court of the Republic of Mol- cording to the provisions of Article 78 of the dova no. 6 of 16.11.1999 on the initiative to amend the Consti- tution of the Republic of Moldova (Monitorul Oficial no.133- Constitution of Moldova of 1994 that are cur- 134/73 of 02.12.1999)// http://www.constcourt.md/ccdocview. rently in force, the President of the Republic is php?tip=avize&docid=27&l=ro 56 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

tion should not become an object of constitu- Considering that, after the Constitutional tional dispute. Court had delivered the judgment of 4 March 2016, in which certain amendments to the In view of the modality of election of the Presi- Constitution were declared in conflict with dent of the Republic in direct elections and the Constitution, only the modality of elec- taking account of the powers of the President tion of the President was changed and not under which the President had the discretional the powers of the President, it is possible to right to propose a candidate for the office of draw the assumption that the doctrine devel- Prime Minister to be approved by the Parlia- oped in the judgment of 29 December 2015 ment, as well as in view of certain powers of the in relation to the powers of the President in President with respect to the Government, the nominating a candidate to be approved by Constitutional Court regarded the initial regu- the Parliament for the office of Prime- Min lation of constitutional setup as established in ister will continue to be relevant. Since, as

In the absence of close cooperation between the courts themselves and their striving to exchange their experience in constitutional jurisprudence, the occurring similarities would constitute single isolated cases, not contributing to the development of constitutional precedents.

the Constitution of the Republic of Moldova of indicated by the Constitutional Court of the 1994 as consolidating a semi-presidential re- Republic of Moldova in the judgment of publican form of government and as not pre- 4 March 2016, the form of government of the cluding the President from freely nominating a Republic of Moldova remained unaffected by candidate to be approved by the Parliament for the changes in the modality of election of the the office of Prime Minister.23 President, i.e. the Republic of Moldova has remained a parliamentary republic. 23In the judgment of 29 December 2015, the Constitutional Court of Moldova referred to its previous judgments and noted that, pri- or to 5 July 2000, according to Article 78 of the Constitution, the By way of conclusion it can be noted that President of the Republic of Moldova was elected by the citizens the forms of government of the Republic of and, from the point of view of representation, this position was on a similar level as the position of the legislative authority, enjoying Lithuania and of the Republic of Moldova a wide range of competences. The President had the right to initi- have acquired certain additional common ate amendments to the Constitution (Article 141.1.c), to designate a candidate for the office of Prime Minister without consultation qualities. Under the Lithuanian and Moldo- with parliamentary factions (Article 98.1), to take part in the sit- van constitutional regulations, the Presidents tings of the Government, to chair the sittings of the Government he was attending, to consult the Government in matters of urgen- in both states are elected by universal suf- cy or particular importance (Article 83 of the Constitution), etc. frage, and their powers are not broad. Thus, 57 Polish Law Review www.polishlawreview.pl ORIGINAL ARTICLE Unison in Constitutional Interpretation...

the constitutional doctrine formulated by the sis, inter alia, in the ruling of the Lithuanian Lithuanian Constitutional Court in its ruling of Constitutional Court of 1 July 201326 and the 10 January 1998 can be considered relevant judgments of the Moldovan Constitutional in assessing the constitutional framework Court of 10 September 201327 and 6 Novem- of Moldova, its form of government and the ber 201428etc. powers conferred on the President of the Re- public in forming the Government. In the light The proximity of constitutional doctrines is of the constitutional doctrine developed by determined by various factors, including the the Lithuanian Constitutional Court in the rul- development of statehood, shared features ing of 10 January 1998, another assumption of the constitutional setup and similarities in can be made that, upon the delivery of the political processes taking place in the states. judgment of 4 March 2016 by the Moldovan Regardless of this, in the absence of close co- Constitutional Court, which led to changes operation between the courts themselves and in the modality of election of the President their striving to exchange their experience in of the Republic, the form of government of constitutional jurisprudence, the occurring the parliamentary Republic of Moldova has similarities would constitute single isolated also gained certain elements of a semi-pres- cases, not contributing to the development of idential republic, as well as that the constitu- constitutional precedents. tional doctrine formulated in the ruling of the Lithuanian Constitutional Court of 10 Janu- 26The ruling of the Constitutional Court of the Republic of Lithu- ania of 1 July 2013. On line access: www.lrkt.lt ary 1998 can be regarded as pertinent in interpreting the current constitutional setup of 27Judgment of the Constitutional Court no. 24 of 09.10.2013 on the Republic of Moldova. the control of constitutionality of some provisions of Annex 2 of the Law No. 48 of 22 March 2012 on the System of wages of public servants// http://www.constcourt.md/ccdocview. Unison of constitutional doctrines extends to php?tip=hotariri&docid=470&l=ro certain other decisions adopted by the Lithu- 28Judgment no.25 of 06.11.2014 on the control of constitutionality anian and Moldovan Constitutional Courts. It of certain provisions of Law no.146 of 17 July 2014 on the amend- similarly becomes evident in analysing, inter ment and competition of certain legislative acts (remuneration of public servants within courts and of judges)// http://www.const- alia, the ruling of the Lithuanian Constitutional court.md/ccdocview.php?tip=hotariri&docid=514&l=ro Court of 24 January 201424 and the judgment of the Moldovan Constitutional Court of 4 March 201625 concerning the constitutionality of constitutional amendments; another set of decisions regards the reduction of social guarantees during the global economic cri-

24The ruling of the Constitutional Court of the Republic of Lithu- ania of 24 January 2014. On line access: www.lrkt.lt

25Judgment No. 7 of 4 March 2016 on constitutional review of certain provisions of Law No. 1115-XIV of 5 July 2000 amending the Constitution of the Republic of Moldova (modality of electing the President) // http://www.constcourt.md/ccdocview. php?tip=hotariri&docid=558&l=en 58 Pol Law Rev, 2016 Vol. 2 (2), p. 47-59 DOI: 10.5604/24509841.1230279 Unison in Constitutional Interpretation... ORIGINAL ARTICLE

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Competing interests: Authors have declared that no competing interest exits.

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Corresponding author: Toma Birmontiene; e-mail: [email protected]

Table of contents 2016: http://polishlawreview.pl/resources/html/articlesList?issueId=9624

Cite this article as: Birmontiene T.: Unison in Constitutional Interpretation: Doctrinal Developments by the Lithuanian and Moldovan Constitutional Courts; Pol Law Rev, 2016 Vol. 2 (2); 47-59

59 Polish Law Review www.polishlawreview.pl