On Tuesday, 3 October, the Constitutional Court (CC) declared unconstitutional the provision restricting the right to be elected, for a period of five years from the date of the ruling, of the members of the outlawed “Sor” political party. Thus, representatives of the former “Shor” party were not restricted from participating in the 5 November general local elections.

Earlier the following day, 4 October, the Commission for Exceptional Situations (CSE) adopted derogations to the Electoral Code prohibiting members of the outlawed former “Șor” party from participating in the elections.

A few hours later, the Parliament approved, in first and then second reading, the legislative initiative amending the Electoral Code. The bill was voted by 58 deputies of the Action and Solidarity Party (PAS). Socialists and communists boycotted the plenary session of the legislature.

Some constitutional law experts warn: “They are changing the rules of the game during the game”. The provision of the CSE is described as a “display of legal illiteracy”. They also see the task of individualising electoral responsibility as “a failure”.

Alexandru Arseni, PhD in law, member of the first Parliament of the Republic of Moldova, signatory of the Declaration of Independence:

Yesterday’s CC ruling declaring unconstitutional Art. 16 para. (2) letter e) of the Electoral Code, in the drafting of which the Parliament intervened absolutely unscientifically, is constitutional, well founded, logically and legally argued.

After the CC declared unconstitutional in May this year the “Shor” party as an institution/element of the political system, this party no longer exists. The status of former members, including the leadership, is determined by a final decision individualized in the court of law. Even if a group commits one or more offences, the punishment is personalised, each has its own punishment.

The Ministry of Justice and the Public Service Agency should have prepared an individual application on each person, to take them to court with the request that they be deprived of the right to hold public office for three or five years, but they did not do so, although they were consulted. It is the only way, the rest are games, the current government considers us as aggro.

The electoral code can be amended, but unless there is a court ruling, with the text “person X is deprived for a period of time from holding public office”, the list they draw up will have no legal or constitutional force.

This initiative is ungrammatical, has no scientific basis and is contrary to the principles of the rule of law. The person is considered innocent until proven guilty. They can be convicted on the basis of the records they have, but restriction from holding public office is an additional sanction.

Former Deputy Minister of Justice Nicolae Eșanu:

Taken separately, it is not a problem that a bill amending the Electoral Code has been adopted. The bad part is that the Parliament has shown disrespect to the CC. The principle of cooperation of the powers in the state says that, at the very least, the Parliament should wait for the arguments of the CC. Under the current circumstances, how much time have MPs had to study the ruling? How consistent is the legislative initiative with what the CC has concluded?

The electoral process must be conducted in accordance with certain international standards. One of them says: “electoral legislation shall not be changed less than one year before the elections”. What happens in our country is that the rules of the game change during the game.

In the case of the CSE things are even worse. The state of emergency is a pretext to intervene and was introduced for certain circumstances, although there is no basis for us to live in a state of emergency. The fact that elections are being held is proof that we do not have a state of emergency.

The CSE decision is ‘written on the knee’ (improvised, ed.), on the run and shows that people have no idea what they are talking about. Instead of providing for a ban on standing in local elections, they have provided for a ban on participation in elections, which means that these people are not even entitled to participate as voters.

In Moldova we have a problem, everyone judges from the perspective of likes and dislikes. The CC ruling is not about individuals, it is about declaring the party unconstitutional. The party and its members are distinct subjects of law.

Justice expert, Alexandru Bot, WatchDog.MD community:

Under the cover of the Constitutional Court’s Decision No. 10/2023 on the constitutionality control of the “Shor” Political Party, it was decided to limit the right to be elected not only for the “Shor” Party, but also for its members who held executive positions or were previously elected to elective positions on the lists of the named party (deputy, local councillor, mayor, etc.).

However, the Court’s judgment of 3 October found that the amendments to the Electoral Code went beyond the limits of what the Court had decided in its judgment No 10/2023, in that the Court did not rule on the limitation of the exercise of the right to be elected for former members of the party, but only on the mandates acquired during the existence of the Sor Party.

Moreover, the CC also criticised the fact that when making the amendments, the Parliament did not differentiate between the Shor Party and its members, as these were separate entities, between those who held executive decision-making positions and those who had no decision-making power in this structure or those who dissociated themselves from the party’s activity.

Thus, the Court found that the term itself, a five-year ban on participation in elections as a candidate, is unreasonable, exaggerated and disproportionate in relation to the different categories of persons, former members of the party or elected to elective office on its lists.

The CC in fact found that Decision No 10/2023 on the constitutionality review of the “Shor” political party was used as a cover to limit the right to be elected for some potential electoral contestants, and that the ban on being elected is not causally related to the findings on the unconstitutionality of the “Shor” party.

Thus, for a ban such as the one discussed above to survive the constitutionality test, Parliament would at least have to regulate criteria for individualizing electoral liability for persons affiliated with the unconstitutional party, a task successfully failed by Parliament.