Decision no. 24/06.05.1999 of the Constitutional Court

on the Constitutionality of Section 20.2 of the Act Providing for the Special Status of Gagauzia/Gagauz-Yeri, no. 344-XIII of 23 December 1994

Headnotes:

Under the Constitution, members of the judiciary, including the President and members of the Supreme Court of Justice, are appointed by the President of the Republic or the parliament following a proposal submitted by the Judicial Service Commission.

The basic principle on which the state is organised and run is that the legislature, the executive and the judiciary shall be separate (Article 6 of the Constitution).

Areas in the south of the Republic of Moldova may be granted special forms and conditions of autonomy in accordance with special provisions as to their status enacted in the form of organic laws (Article 111 of the Constitution).

Gagauzia's exercise of its powers is circumscribed by the Constitution.

The Judicial Service Commission appoints, transfers, promotes and disciplines judges (Article 123 of the Constitution).

Summary:

The Minister of Justice applied to the Court for a ruling on the constitutionality of Section 20.2 of the Act Providing for the Special Status of Gagauzia/Gagauz-Yeri, which stipulates that members of the judiciary in Gagauzia shall be appointed by Order of the President of the Republic following a proposal by the People's Assembly (Halc Toplosu) of Gagauzia and with the approval of the Judicial Service Commission.

The applicant maintained, however, that, under the Constitution, members of the judiciary, including the President and members of the Supreme Court of Justice, are appointed by the President of the Republic or the Parliamentary Speaker following a proposal from the Judicial Service Commission.

Under the principle that the legislature, the executive and the judiciary are separate, each occupies its own sphere within the overall authority of the state and has its own distinguishing powers. Each has its own prerogatives and none may interfere in the others' areas of responsibility.

Public administration in the administrative and territorial entities, which is an executive function, is based on the principles of local self-government, the decentralisation of public services, the election of local authorities, and public consultation on local problems of special interest (Chapter VIII of the Constitution).

Gagauzia/Gagauz-Yeri is an administrative and territorial entity with special status under organic legislation (Act no. 344-XIII of 23 December 1994).

The Court held that the People's Assembly is a representative authority that has law-making powers within its sphere of responsibility, and is subject, in its activities, to the general principles laid down in the Constitution.

However, the judiciary throughout the Republic - including the territory of Gagauzia - exercises its responsibilities solely within the bounds fixed for it.

Genuine justice depends upon the principle of judicial independence (see Articles 114 and 116.1 of the Constitution), and the relationship between the judiciary and the other public authorities is significant in this respect. Judges cannot be subordinate to or dependent upon these other authorities, whatever their nature or their rank in the hierarchy of the state.

Members of the judiciary are appointed by the President of the Republic or the Parliamentary Speaker following a proposal from the Judicial Service Commission. The latter is the only body constitutionally empowered to propose to the President of the Republic or the Parliamentary Speaker judicial candidates for appointment, transfer or promotion.

The Court held that the Constitution accorded powers in this sphere exclusively to the Judicial Service Commission and not to other bodies.

Likewise, it considered that, when the Constitution was adopted, the legislature - in order to safeguard the independence of the judiciary - laid down a single principle, applicable throughout the Republic, that judges should be appointed by the President of the Republic or by the Parliament following a proposal from the Judicial Service Commission.

The Court therefore ruled that Section 20.2 of the Act Providing for the Special Status of Gagauzia/Gagauz-Yeri is unconstitutional.

Judges Nicolae Kisseev and Ion Vasilati delivered a dissenting opinion, maintaining that Act no. 344-XIII of 23 December 1994 complies with the Constitution.

They held that Section 20.2 of the Act, which stipulates that the approval of the Judicial Service Commission is needed, cannot be construed as either unconstitutional or an interference in the activity of the Judicial Service Commission, but is simply a provision whereby the People's Assembly of Gagauzia makes use of one aspect of the particular status accorded to it under special legislation pursuant to Article 111 of the Constitution.

Significantly, the dissenting judges considered that Section 25 of the Act no. 344-XIII of 23 December 1994 makes the Republic the guarantor for Gagauzia's exercising of the powers attributed to it.