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<cdl\doc\2002\cdl\ 040-e.doc> CDL
(2002) 40
191 / 2001
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(
CONSOLIDATED OPINION
ON THE LAW
ON MODIFICATION AND ADDITION
IN THE CONSTITUTION
OF THE
based
on comments by:
Mr
James HAMILTON (
Mr
Kaarlo TUORI (
Mr
Joan VINTRO (
I. Introduction
1. On
2. On the invitation of the Moldovan
authorities a group of Rapporteurs and two members of the Secretariat of the
Venice Commission visited
3. In order to place the proposal in
its context it is necessary to refer to certain current legal provisions
concerning the autonomous region of Gagauzia, their place in the Moldovan legal
order and certain key provisions of the Constitution of Moldova.
II. Current legislative framework
A. The
Constitution of the
4. Article 1 of the Constitution
establishes the
5. Article 60 provides that Parliament
is the sole legislative authority of the State in the
6. The Constitution is, by virtue of
Article 7, the supreme law of the country.
No laws or other legal acts and regulations in contradiction with its
provisions may have any legal power.
Article 135 empowers the
7. Article 72 classifies the laws into
three categories: constitutional, organic and ordinary. Constitutional laws are aimed at revising the
Constitution. The revision, under
Article 141, must be initiated by popular initiative, by one-third of the
Parliament, or by the Government. A
revision may not be allowed if it results in the suppression of fundamental
rights or their guarantees (Article 142 (2)). The
8. Article 111 of the Constitution
provides that special forms of autonomy, according to special statutory
provisions of organic law, may be granted to (a) “the places on the left bank
of the Nistru river” (Transdniestria) and (b) “certain other places in the
south of the Republic of Moldova” (this refers to Gagauzia). Article 111 goes on to provide that
“amendments to the organic laws establishing special status” for these places
require a three-fifths majority in Parliament. Article 111.2 implicitly
provides for “special” organic laws regulating the status of autonomies.
B. The
Law on the Special Legal Status of Gagauzia
9. Gagauzia was established as an
autonomous territorial entity by an organic law of
10. The 1994 Law establishes Gagauzia
as comprising localities where Gagauzes constitute more than 50% of the
population, together with other localities where a majority in a local
referendum wish to be included in Gagauzia.
(Article 5). The 1994 Law provides that “land, mineral deposits, water
flora and fauna, other natural resources and movable and immovable property
situated in Gagauzia shall be the property of the people of the
11. Article 1 (4) of the 1994 Law
provides that in the event of a change in the status of Moldova as an
independent State, the people of Gagauzia shall have the right to external
self-determination.
12. The 1994 Law establishes a
representative body in Gagauzia (“the People’s Assembly”) with power to adopt
legal Acts within the limit of its competence (Article 7). It can adopt legal local laws by a simple
majority (Article 11 (1)) in the fields of science, culture and education;
housing and public services and utilities; health care, physical culture and
sport; local budgetary, financial and fiscal activities; the economy and
ecology; and labour relations and social security (Article 12 (2)).
13. The People’s Assembly also has
powers in relation to regional planning, boundaries of regions, towns and
villages, place-names, local elections and referenda, symbols and awards
(Article 12 (3)). It has power to adopt,
and has adopted, a legal code (Article 11 (2)).
14. The texts do not make it clear what
the respective powers of the People’s Assembly and the national Parliament to
make laws in these areas are, and what place such laws have in the hierarchy of
norms. It would seem, from answers given
to the delegation in the course of discussions, that the People’s Assembly’s
competence to make laws in the area where it is empowered to legislate are not
exclusive, that is, that laws of the national Parliament may continue to apply,
but that in case of conflict that laws of the People’s Assembly prevail.
15. The People’s Assembly can ask the
Constitutional Court to declare invalid legal Acts of the legislative and
executive authorities of the Republic of Moldova, which infringe the powers of
Gagauzia (Article 12 (3)(i)). Legal acts
of Gagauzia that contradict the Constitution may also be declared invalid
(Article 12 (6)), but the 1994 Law sets out no special procedure to regulate
applications to do so. The initiative to bring such a matter before the Court
is determined by the law regarding the
16. The 1994 Law also provides for an
executive Head (Bashkan) of Gagauzia, and an Executive Committee. The Executive Committee has responsibility, inter
alia, for local budgetary and financial arrangements, local taxation, and
drawing up a budget. By Article 18 the
budget is to consist of such receipts as shall be determined by national
legislation and by the People’s Assembly.
17. The 1994 Law also established a
Court of Gagauzia as an appellate court and as a court of first instance for
complicated civil, administrative and criminal cases (Article 20). Gagauzia has its own Procurator and its own
Departments of Justice, National Security and the Interior, whose heads are
appointed and dismissed by their national counterparts on a proposal from the
People’s Assembly or the Bashkan with the approval of the People’s
Assembly. Responsibility for the appointment and dismissal of senior police
officers is shared between the central authorities and Gagauzia.
* * * * * * *
18. Taking into account the current
legislative provisions and the consensus of all parties that constitutional
changes should be made on the basis of the 1994 Law and in full respect of
constitutional provisions, it can be presumed that constitutional amendments
should be drafted on the following principles and criteria:
a) compatibility between the unitary
character of the
b) political, rather than
administrative, nature of territorial autonomies such as Gagauzia;
c) possibility to use special symbols
of the autonomies and a special status (official) of other language(s) in use
on the territory alongside the State and national languages established by the
Constitution of Moldova;
d) special organic law is the legal
basis for the functioning of the autonomy; Law of 1994 can be already
considered as such law in the light of Article 111.2 (see p.10);
e) “special organic law” should be
distinguished from organic laws on both material and formal levels[2];
f)
the Constitution of Moldova and special organic laws
represent a constitutional basis, which determines the development of all other
norms – no piece of legislation or other normative act can be in conflict with
the provisions of the Constitution and the special organic law; organic and
ordinary laws can be implemented in Gagauzia if they do not contradict the
Constitution and provisions of the special law on the status of Gagauzia;
g) The Constitutional court of the
III. The Proposed Constitutional Law
A. The
current situation with regard of the status of the Gagauz autonomy.
19. It is important to emphasis that
both the Moldovan authorities whom the Commission delegation met and the
Gagauzian representatives who were critical of the proposed law expressed
themselves generally satisfied with the workings of Gagauzian autonomy as
provided for in the provisions of the 1994 Law. The question therefore arises
whether the proposed constitutional law is necessary and whether it might not
be wiser to leave well alone given that the present system appears to have worked
now for eight years. The present proposal may run the risk of upsetting the
balance with a constitutional law that has proved to be controversial.
20. The answer, which was given to this
question by supporters of the proposal, is that a constitutional underpinning
of the existing arrangements is both desirable and necessary. It was suggested
that aspects of the 1994 Law might be in conflict with the Constitution. For
example, the
21. The establishment of an autonomous
region in Gagauzia falls far short of converting
25. However, the extent of the powers
conferred on the Gagauzian autonomous institutions is very striking. The range
of matters on which the People’s Assembly can legislate is almost fully
comprehensive. It is difficult to see any important area, which is
excluded from their competence apart from defence and foreign policy. Even here
the 1994 Law contains an express right for the People’s Assembly to participate
in the implementation not only of the home policies but also the foreign
policies of the Republic of Moldova with regard to matters affecting the
interests of Gagauzia (Article 12 (3)(b)). The range of executive responsibilities
is equally comprehensive. In addition to budgetary powers, the Executive
Committee can regulate property relations, management of the economy, social
and cultural systems, social security, remuneration, local taxation,
environmental protection, and the use of natural resources. It has
responsibility for the implementation of legal acts of the People’s Assembly
which, as already seen, can cover a comprehensive range which includes
education, housing, public services and utility, health and labour relations.
26. There are, therefore, aspects of
the current arrangements under the 1994 Law, which are difficult to square with
all of the constitutional provisions, notwithstanding that the Constitution, in
Articles 72 and 111, expressly envisaged the creation of local autonomous
institutions. It is difficult, for
example, to see that the creation of a legislature in Gagauzia whose laws are
capable of ousting the national laws is consistent with Article 60 in its conferring
of sole legislative competence on the national Parliament, or with Article 66
which empowers Parliament to ensure legislative unity of regulations throughout
the country.
27. More fundamentally, if the solution
arrived at in 1994 is intended to represent a lasting solution to the problem of
Gagauzian autonomy and self-determination, it would represent a better
protection for the legal order established by the 1994 Law if the essential
features of that law (and not merely the right to make such a law) were
reflected in the Constitution. Unless
and until this is done the 1994 Law remains vulnerable to further incursion by
decisions of the
28. It seems, therefore, that there are
good reasons why the 1994 Law should be given a constitutional underpinning,
both to avoid any question about its compatibility with the constitutional
framework and possibly to avoid the essential features of it being altered
without the consent of the people of the autonomous region.
29. From the beginning of the process
of drafting the amendments in 2001 there were two different approaches to the
future provisions of the Constitution with regard to Gagauzia. One draft was
presented by a special Commission on constitutional amendments created by the
parliament of
30. The second proposal of constitutional
amendments had been drafted by a group of members of the Popular Assembly of Gagauzia and was presented during the visit of the
delegation of the Venice Commission to Chisinau in February 2002. This draft
law aims at transforming Moldova into a federative state with the present
Republic of Moldova and Gagauzia as its constitutive (and equal) entities. As
such, the draft law can be considered an unrealistic basis for any further
discussions. Given the various national and ethnic minorities in
B. Law on modification and addition in the Constitution
of the Republic of Moldova
31. When analysing the law it should be
pointed out that it contains a number of positive features. These could be
identified principally as follows:
a. The clarification of Article 73 is
useful and important and has been generally supported. According to the
proposed Article 73, the Popular Assembly of Gagauzia would be granted the
right to legislative initiatives. As it is the case in most countries with
territorial autonomies the final decision on the initiative belongs to the
national parliament. If the intended amendments are to cover not only a
status of Gagauzia but autonomies in general it could be completed with the
phrase ‘(Gagauzia) and other legislative Assemblies of autonomies’.
b. The amendment of Article 110 to
make specific provision for the Gagauzian autonomy is a positive step.
c. Similarly, the idea of the new
Article 111-1, which makes detailed provision for Gagauzian autonomy, setting
out a number of key provisions of the 1994 Law in the Constitution, is a positive
step. In particular, the giving of
constitutional expression in paragraph (5) to the right of self-determination
of Gagauzia in the event of a change of status of
32. There are, however, a number of
shortcomings in the draft which could be identified as follows:
a. Articles
110(1), 111(2), 111-1(4) and 111-1(6) refer to “special organic laws” which
would apparently constitute a new hierarchical level between the Constitution
and “ordinary” organic laws in the legal order of
Article 111
b.
The proposed new Article 111(1) makes no reference to the
existence of legislative bodies since its wording is “the territorial autonomies have
representative and executive bodies according to the law”. The term
“representative” could be replaced by “legislative”. The constitutional change
should underline rather political than purely administrative character of the
autonomy.
The text needs to make specific provision for legislative powers and to address
the possible conflict with the existing Articles 60 (Parliament as the Supreme
Representative Body and Legislative authority) and 66 (Basic Powers). If the
scope of the proposed modification of the Constitution is upheld, Articles 60
and 66 should be modified in the light of the law of 1994. The paragraph 1 of
this Article should also mention judicial bodies[5].
c.
Article 111 (2) should provide for the legislative nature
of the assembly of the autonomy and the democratic character of territorial
institutions. It could provide that a territorial autonomy has a legislative
assembly and executive bodies democratically elected in accordance with the
Constitution and the special organic law.
d.
The reference in the proposed Article 111(3) that the
control over the observance of the Constitution and legislation of the
Article 111-1
e.
The meaning of the expression “within the law’s framework”
is unclear in Article 111-1(1). It seems that such changes would continue to
have to be made by an organic law. As has already been mentioned, the
references to a “special” organic law seem to refer to the current Article
111(2), which requires a three-fifths majority to amend organic laws concerning
autonomy, but since there is otherwise no reference to “special” organic laws
it would be desirable that this be clarified in the text. In addition, the
effect of putting certain provisions in the Constitution will be to further
entrench them since amendments to the Constitution require a two-thirds
majority. It is therefore a safeguard for the Gagauzian autonomy that the key
provisions of the 1994 Law should appear in the Constitution.
f.
The proposed Article 111-1 (3) concerning natural resources
differs from the text of the 1994 Law.
It is not clear why this should be so.
g. According
to the proposed Article 111-1(4), the budgetary process in Gagauzia shall be
regulated through the special organic law determining the status of Gagauzia.
This is the only issue, which Art 111-1 on “the Territorial Autonomy Gagauzia”
explicitly requires to be regulated through the special organic law. It is
essential for the constitutional protection of the autonomy of Gagauzia that
the issues, which belong to the exclusive scope of regulation of the special
organic law, are enumerated in the Constitution.
h. It may be appropriate to give some
consideration as to how future amendments to the system of Gagauzian autonomy
should be made. The proposed Article 111-1(6) contains a provision
on the qualified majority required for changes and amendments to the special
organic law on Gagauzia. A question in need of further consideration is whether
the appropriate location for such a provision in this Article or in Chapter
Three, Section Three of the Constitution. For example,
in
Other
observations
In order
to facilitate control through the Constitutional Court, the appropriate
Moldovan authority, such as the Government of the Republic of Moldova or the
Prime Minister, should have the power to submit to the Court any legal act
adopted by the Popular Assembly of Gagauzia which the authority considers to
exceed the powers of the Assembly. At present, the law on the Special Legal
Status of Gagauzia only gives the Popular Assembly of Gagauzia the power to
submit to the Constitutional Court legal acts adopted by the legislative or
executive authorities of the Republic of Moldova which it considers to infringe
the autonomous powers of Gagauzia (Article 12(3), par. i). Article 135 (1) of
the Constitution of Moldova could be amended with corresponding provisions
giving the power to central authorities to challenge the constitutionality of
the normative acts of the autonomy.
IV. Conclusion
The
proposed draft law on constitutional amendments concerning Gagauzia is a
positive development since it recognises the existence of the autonomy and
determines its competences at the level of the Constitution of the
[1]
Letter of
the President of the Commission on changes to the Constitution of
[2]
The material level is the
fact that the special organic law establishes the territory, institutions,
symbols, official languages and powers of the autonomy and the formal one is
the specific procedure for adoption and possible modification of special laws.
[3]
The
decision of the Constitutional court N° 24 of 6.05.1999 “On the
constitutionality of Section 20.2 of the Law on the Special status of Gagauzia/Gagauz-Yeri, N°344-XIII of
[4]
Article 2
of the Constitution of
[5] Paragraph 1 would read: “ the territorial autonomies have
legislative, executive and judicial bodies according to the law”.
[6]
The examples of such
judicial control exist in several countries that have authonomies,
for example, Article 153 of the Constitution of