THE NECESSITY OF A CONSTITUTIONAL COURT STATEMENT ON CRITERIA FOR INVALIDATING ELECTIONS

In the context of recent social-political events in the municipality of Chisinau, namely the invalidation of the new local elections, we would like to highlight the risks for the upcoming Parliamentary elections, which will take place under a mixed voting system.

The Civic Coalition for Free and Fair Elections urges all subjects endowed with the right to petition the Constitutional Court to examine and consequently register with the High Court the petition drafted by WatchDog.md Community specialists, which refers to the review of constitutional norms through the lens of the following aspects:

• Does Moldova guarantee the rule of law concept by safeguarding the citizens’ right to participate in the administration of public affairs, as well as the rights to vote and to be elected?
• In absence of exact provisions and criteria, can certain authorized state institutions invalidate elections?
• Isn’t the invalidation of elections, in absence of exact provisions and criteria stipulated by legal norms, a violation of the constitutional guarantee of the rights to vote and to be elected, as well as the citizens’ right to participate in the administration of public affairs?
• Can elections be invalidated by courts of law by default, in response to poorly-argued motions to annul elections and in absence of relevant supporting evidence, submitted by the voters, electoral bodies, or candidates that have participated in the ballot?
• Should constitutional jurisprudence regulate electoral fraud and provide exact criteria for the invalidation of elections, until said regulation deficiencies can be mitigated by the legislative authority?

The petition draft also proposes for the Constitutional Court to review the constitutionality of actions/ inactions by courts of law and the central electoral body; by courts of law at the stage of rejecting the legality of election rounds and invalidating mandates by courts of law, and by the central electoral body at the final stage (without calling for repeated voting), in this year’s general Mayor elections in the municipality of Chisinau.

Likewise, since the Parliament will soon go on vacation, and there are less than six months left until the upcoming mixed-system Parliamentary elections, the petition draft proposes for a review of the lack of action on behalf of the executive and legislative authority with regards to the issues noted by the Constitutional Court following the legality assessment of the Presidential elections of 2016.

In light of the above-mentioned, following its role of “passive legislator”, the High Court is requested to elaborate on the means of executing and implementing the reasoning / conclusions / observations stemming from its statements and Constitutional Court Judgement nr. 34/2016, namely (a) clarifying legislation on reviewing appeals concerning the organization and evolution of elections (due to poor implementation by state institutions), (b) modifications to the mechanism and ensuring the right to vote from outside country borders, (c) exact regulation and implementation of prompt and immediate sanctioning mechanisms (including criminally pursuable offenses) on attempts to involve religious groups in election campaigns, (d) amendments to the legislation concerning radio broadcasters’ liabilities in electoral periods (including suspension of broadcasting rights for the duration of the electoral period, for institutions that violate the impartiality clause), as well as (e) punishing the corruption of voters, all of the above representing violations that can heavily influence election outcomes.

We would like to point out that, as early as 2016, the Constitutional Court has highlighted the necessity for a comprehensive revision of electoral legislation, followed by the development of a revised electoral Code, which would harmonize with constitutional principles, towards the organization of democratic, fair and transparent elections. However, one and a half years later, the current Parliament has merely had the capacity and willingness to switch from a proportionate representation system to a mixed one, without voting on the amendments necessary to guarantee the main elements of the rights to vote and to be elected, at least in the sense addressed by the Constitutional Court.

In order to avoid complete erosion and/or loss of trust in state institutions, thus affecting the concept of rule of law and the guarantee on state authorities protecting citizens/ the people against arbitrage, and taking into account the debut of a new voting system at the following Parliamentary elections, it is our belief that the Constitutional Court should expedite the petition review, as there are less than six months left until Parliamentary elections, and especially for the safeguarding of citizens against the dangers posed by their own rights, as well as against potential loopholes created by said rights and/or by state institutions.

Follow the link for a recording of the Press Conference concerning the presentation of the Constitutional Court Petition draft.