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COUNTRY REPORTON DOMESTIC REGULATIONS OF POLITICAL PARTIES IN MOLDOVA Igor Munteanu
Structure of the Report1. Elements of political transition in Moldova2. Institutional Context for political parties3. Parliamentary regulations and parties4. Parties as Organizations5. Parties in Elections6. Party funding7. Policy Recommendations
Elements of political transition in Moldova 1990 – first multi-party elections in SSRM, while in August 1991 – ban of the CPSU (collapse) 1991 – Law on political parties (17.09.1991) – institutionalisation of the pluralist environment 1991 – 2000 – successful case of political transition – turning into a multiparty democracy where incumbent parties lost elections (presidents transmitted peacefully their power to the successors, while alternation to power became a rule (Snegur – Lucinschi – Voronin) 1994 – Democratic Parties (PFD/BPI defeated by leftist Block of Agrarians and Socialists (BAS) 1998 – BAS defeated by a center-right Alliance of Democratic Forces (ADF). 2001 – ADF defeated by Communsts (CPM) - overwhelming majority (71 out of 101 seats) In 2005 – exceptional case, when CPM succeeds to remain in power by a conditional vote from democratic parties (CDPM, DP, SLP) - echoes of ‚color revolutions’ in Georgia/Ukraine 2007 – CPM defeated in local elections by opposition making coalitions at sub-national level 2007-2008 - ‘approximation’ of the party regulations to the CPM ‘caprice’ and interests 2009 – convulsive elections, accusations of frauds, disputed recognition of election results May – June – polarization of society, inability to resolve disputes via political means, 60 versus 41 votes in the Parliament, led to the destitution of the Parliament on June 3) June – July – new round of inflammatory speeches, accusations on administrative resource abuses, early elections of July 29, creation of a new governing coalition (AEI) 1990 1991 1994 2000 2001 2009
Institutional Context Art.41 Constitution (Freedom of parties, other social – political organisations) Equality of all political parties by law (art.41-2), Protection of the rights and legitimate interests of parties and other social-political organisations (41-3). Art.38 of the Constitution enshrines the right to vote and be elected. The right to vote is prescribed by law to all citizens, which have reached 18 years old, by day of elections, the only exceptions being related to whose deprived by this right, in accordance with the legislation. Constitutional restrictions: May be applied towards political parties and other social-political organisations, which militate by their scopes or activities against the political pluralism, rule of law principles, sovereignty and independence, territorial integrity of the are unconstitutional (art.41-4): secret associations are prohibited by law (41-5), political parties established by foreign citizens are not allowed (41-6). art.2-2 (Sovereignty and state power) - ‘not a single particular person, nor a part of the people (nation), a social group, a political party, or any other social formation may exercise the state power in its own name’.
Normative provisions of the party functioning Law on political parties and other social-political organizations, Nr.718-XII din 17.09.91 Veştile nr.11-12/106, 1991 ‚regulates the existence of ‘fronts, leagues, mass political movements, etc’, excepting independent organisations of citizens, which are established to promote professional or cultural interests, i.e. and do not aim to participate in the creation of state authorities’ (elections). - art.1-1 Law on political parties, No.294-XVI of 21.12.2007, Official Monitor of the Republic of Moldova, No.42-44/119 of 29.02.2008 ‘regulates voluntary associations, established as legal entities, by citizens of the Republic of Moldova, entitled to vote, which may contribute, through their common activities and on the basis of free participation of their members, to the expression, elaboration and formulation of their political will’ (art.1-1).
The new law on political parties (2007) provides:
a much clearer definition of ‘parties’ than the previous law, describing in greater details the most appropriate forms of political activities
financing for registered political parties by the state, and stipulates specific mechanisms for accountability and transparent use of political finances
additional restrictions on parties, which ‘militate against sovereignty, territorial integrity, democratic values and rule of law in Moldova, by its programmatic scope or specific activities, using in this regard illegal or violent means to achieve these goals, at the expense of fundamental freedoms and democracy’ (art.3-1).
Reiterates prohibition of financing parties from abroad, or membership to foreign citizens.
Bans functioning of regional political parties (art.8-d) - party members shall be based in at least half of the current territorial administrative units of II tier of Moldova’ (32 rayons, today), but not less than 120 members in each of the above mentioned territorial administrative units, in total - 1920 members.
Although the requested number is not too high, this is considered a restrictive condition by those who would favour creation of regional parties (read – ethnic) in the southern part of the country (Gagauzia).
NON-COMMERCIAL, BUT DIFFERENT REGULATIONS TO PARTIES AND PUBLIC ASSOCIATIONS Political parties are required: (art.8) to confirm its membership, present a founding act, which shall be signed up by not less than 4,000 members, residents in at least half of the existing territorial administrative units of 2 tier, but not less than 120 members in each, etc. Party members – founders of respective political parties - shall reside in not less than half of the 2 tier territorial-administrative units of Moldova, having at least 120 members each. Members of political parties cannot be foreign citizens or apatrids. Public Associations shall: Be established at the initiative of their founding members, which can be moral (physical) or legal persons (art.11-14 of the Law on public associations). Public associations are non-commercial entities, ‘independent from public authorities, established on a voluntary basis by at least 2 physical or legal persons, associated through a community of interests, with the aim to realise, according to existing laws, some legitimate rights’. Foreign citizens and apatrids, residing on the territory of Moldova, can establish public associations, with the same right as Moldovan citizens, and by the moment of registration, founders became full-right members of their associations, owners of all the rights and obligations, as established in the foundation charter.
Organisational rules for parties Legal registration at the Ministry of Justice allows parties to use legal rights, benefits (i.e. state support, art.5), but also impose certain limitations of their activities (art.3). Art.12 of the law states that each of the parties ‘shall act and conduct its activities on the basis of its statute (charter) and program of activities. Statutes must incorporate the procedure for dissolving the party, self-dissolution, disclosure of financing (art.13-l) and a clear mechanism for the administration of properties, accountability and internal control. Parties shall respect in full legislation (art.18) and govern their activities on the basis of the registered charters (statutes), also approved by party members at the original constitutive assemblies (congresses). Parties are requested to nominate their official representatives in relationship with public authorities, other legal and physical persons. The Law explicitly envisions the territorial principle for the organisation of parties* (art.2), imposing the obligation to follow the existing territorial-administrative structure of the country, and stipulate that ‘party’s official bodies, structures and branches shall reside only on the territory controlled by constitutional authorities of the Republic of Moldova. Art.8-4 of the Law allow groups of citizens, whose application was declined at the registration to attack Ministry’s decision in the Appeal Court (Chisinau) during 10 days from date of its adoption. Art.9 of the Law on political parties states that only a court can decide to ban a political party, thus abolishing the original registration of parties
Constitutional Court ruling on party regulations Introduction of the so-called “principle of representation” was brought to the Constitutional Court in September 1998, which stated that “the principle of representation doesn’t contradict to the constitutional right to associate freely, but could become unconstitutional if, by its effects, will conduct to suppression of the right to associate freely or to effects similar to those created by suppression” (Decision of the Constitutional Court no. 37 of 10.12.1998 on interpretation of art.41 par.(1) form the Constitution of the Republic of Moldova). This position has been confirmed by a Decision of the Constitutional Court (no.3, 29.01.1999, where the Court reiterated that establishing a criterion based on the number of members in a party, falls under the competence of the organic law, i.e. depends on the discretionary power of the Parliament and can’t be the subject of examination of the Constitutional Court if its effects don’t lead to suppression of the principal of political pluralism. At the same time, the Court decided that, starting from the representation criterion that is established by the Parliament, provisions on the minimal number of members of a party in the administrative-territorial units of the 2nd level, comply with constitutional norms (Decision no.11 of 03.06.2003). Judgement of the European Court of Human Rights in the case of CDPP v. Moldova (application no. 28793/02) of 14.2.2006, where the Court ruled that there was a violation of Article 11 of the ECHR, stating in particular that the temporary ban on the CDPP’s activities was not an appropriate step in a democratic society and that the ban could have had a “chilling effect” on the Party’s freedom to exercise its freedom of expression and to pursue its political goals, the more so, since it was adopted on the eve of the local elections.
Patrimonialissuesandfinancingforparties Political parties may be owners of buildings, equipment, publishing houses, cars, as well as other kinds of goods, which are not outlawed by legislation (art.24) in conformity with statutory goals set up by these parties.Properties owned by political parties, i.e. incomes acquired through the use of their assets cannot be distributed amongst membership. Art.25 of the law stipulates the main sources of financing for political parties, which are: Membership fees, Donations, i.e. those collected from various cultural, sport, leisure, mass activities organized by parties, State budget subventions, according to the regulations of the current law and annual budgetary law, other legal revenues, according to the art.24-3, such as: printing activities, appropriate to party activities. Parties may receive donations (properties transmitted without conditions and for free to the respective parties – art.26), but the annual incomes for such operations for one party cannot exceed the equivalent of 0.1% of all revenues for this year in the state budget. No restrictions on how many political parties can receive donations from physical persons, but only that the quantum of all donations cannot exceed 500 minimum monthly salaries, as officially estimated in the respective year per national economy. Legal entities cannot donate in a budgetary year more than an equivalent to 1000 average monthly salaries, or appr. 2,7 mln lei (156,184 euro).
Dissolution/De-registrationofparties Registration of parties is made by a Direction of Parties and Public Associations (Decision No.129 of February 2000). The Ministry of Justice is tracking the Registry of political parties, as a legal instrument of managing political diversity of the country, considering the evidence based registry, as a matter of public interest. In fact, information regarding registration of parties, or their dissolution, or changes in the Registry, statute revisions shall be notified to the public via the “MonitorulOficial”, as well as on the official web The Law of 2007 enlist necessary acts for the official procedure of registration (art.8, Chapter III), lasting for 1 mo from the date of submitting prescribed acts, ending with a positive or negative decision. In 10 days from the date of decision, Ministry of Justice can be sued in the Court of Appeal. By Moldovan legislation, parties can be reorganized via absorption, division/separation and transformation (art.20, Chapter V), decided by the leading bodies of the respective parties, in conformity with legislation. If a party produces serious prejudices to the political pluralism, as well as to the fundamental democratic principles, its activities can be limited. Parties are notified about the registered irregularities, and if this is not remediated - party activities can be limited for a 6-period (cannot establish their own media outlets, cannot organize public meetings, gatherings, demonstrations, other actions, cannot receive donations (frozen accounts). Parties can be outlawed if irregularities are not resolved. But, they cannot be limited prior to elections. In practice, some parties met serious obstacles prior to elections of 2005 / 2009.
Parties as Organizations Constitution (art.41-1) enshrines ‘the right of citizens to freely associate in parties and other social-political organisations’. Individual exceptions = those officials, which by virtue of their professional ranks cannot belong to political parties. Another ban is imposed on ‘various secret or other kind of associations, which infringe upon the fundamental provisions of the state’ Art.6 of the Law on political parties further develops this principle, stating that ‘may become members of political parties, citizens of Moldova, which may have the right to vote, according to the existing normal acts’. But, Moldovan citizens can be members of only one political party (art.7-2), thereof, by the moment of joining any party, ‘citizens shall declare in writing, on their own responsibility, if they are or not members of another political party’. But, If the old Law on parties (1991) prohibited some categories of civil servants to be members of political parties (police officers, other staff of the Ministry of Internal Affairs, intelligence officers, custom officers, judges, prosecutors, penal case inspectors, ombudsmen, state inspectors, as well as journalists of the official media). art.6 of the new Law on political parties recognize practically almost no limitations to political membership, extending the right to association to ‘all individuals entitled to vote’, meaning full legal capacity, excepting those persons, which cannot participate in political activities, according to their legal statute (art.6-4). In fact, this new approach followed earlier amendments of the art.16 of the Law on public service and statute of public servants (No.158-XVI of 04.07.2008), which enabled political membership to the civil servants, while maintaining bans only to some specific professional categories, such as: judiciary and prosecutions (art.3 of the Law on Prosecution), Custom officers (art.6 of the Law on Custom Service), militaries (art.36 of the Law on the Statute of Militaries).
Organizational structure of political parties Art.14 of the Law on political parties requests that parties shall have ‘central’ and ‘territorial’ (local) tiers of representation, i.e. party territorial organisations. This implies that parties shall act and evolve via recognized and legitimated membership, delegating their own repesentatives in various party bodies, structures and foras, following a rather sophisticated arhitecture of regulations and procedures, prescribed by their statutory documents. Ministry of Justice requests as a compulsory procedure at the registration procedure that parties set up their specialized bodies for internal control and oversight (Revision and Control Committees), elect a Committee of Ethics and litigation. Party statutory documents shall enable Members of the party to revise / amend the Statute with 2/3 of the delegates, delegated from territorial organisations of the party, which may endorse or amend the party program according to the existing legal provisions of the Charter. Further on, parties define specific responsibilities exercised by their executive representatives. But, the law on political parties (2007) does not stipulate conditions for transparent and accountable activities for parties, excepting financial reporting, requested by the new law (art.30 – financial reports).
Parties‘ internaldemocracy There is no explicit regulation of the ‚internal democracy’ concept in Law of 2007, but this can be inferred from constitutive requirements of the Ministry of Justice. One of the main clauses in ensuring party’s internal democracy is recognition of the ‘equality’ of its members, and legality of its decisions. This is expressed through statutory mechanisms which shall resolve possible disputes or internal (party) disagreements, usually by litigating a solution between the parts, members and leadership, headquarter and local branches, etc. As a last resort, Party members may set a complain to the Ministry of Justice, if they feel their rights have been infringed or irregularities have marred integrity of the statutory documents. Art.12 of the Law on political parties requests parties to set necessary structures in charge with the oversight competence on finances and properties, thus establishing a right balance between the executive and deliberative bodies. As such, regular party conferences or conggresses shall address the issues of financial accountability, via institutionalized bodies of internal audit and financial controls. Most of the political parties do not regulate strict quotas or other rules in their statutes for women, ethnic minorities or religious believers, or other kinds of minorities. In fact, the quota is not prescribed by the existing laws, which follows the general principle of the adherence of parties to the main freedoms, rights and obligations, according to the existing convents and normative instruments in Moldova.
Parties in Elections Since 1991, Moldova organized 7 election campaigns (5 parliamentary, 4 local and 2 presidential) - based on various electoral laws. Election law No. 1609-XII of October 14, 1993 introduced a limited proportional system for elections. Multiple-mandate electoral districts were set at the 2-level administrative-territorial units, while number of mandates for each district had to be proportional to the number of citizens eligible to vote / residing in that district. In 1997, an Election Code was adopted in Moldova, aiming to provide a standardized organization of elections and codes of conduct for the CEC. Multiple-mandate districts were abolished, and elections were conducted on the basis of a fully proportional system, based on ‚one-country-one-constituency model’ (d’Hondt formula, proportional to the votes cast on favor of those parties and candidates, with additional redistribution).
Debates over the ‘fairness and adequacy’ of the election system continued after 1997. Parties contested ‘fairness’, suggesting a revision of the existing system or significant improvements. Council of Europe has also recomended to Moldova repeatedly serious revisions to the existing legislation on elections. In 2002, its Venice Commission stated that Moldova’s Electoral Code and the Constitution provide an “adequate framework for political parties and electoral blocs to enter the political arena on an equal basis, but that there are major setbacks needed to be eliminated”, such as:
professional standards of CEC,
abuses of administrative resources in campaigns,
low accountability of parties in financing their activities, etc.
Gender and minority representation Law on Ensuring Equal Opportunities for Women and Men, February 2006,contains a specific provision that shall guarantee ‘equal opportunities in the electoral sphere and obliges the election administration and political parties to observe the principle of gender equality’. Prior to adoption, the draft law included a 30 per cent quota requirement for women on lists; however, this specific provisions was dropped as many considered quotas to be discriminatory. A Department for Equal Opportunity and Prevention of Violence of the Ministry for Social Protection, Family and Child was established in 2007 to undertake oversight of the implementation of the Equal Opportunities Law. But, there are no any formal regulations or funds that would confer additional benefits or privileges to parties. Moldovan Election Code does not contain any specific requirement to the competing electoral actors, which would aim to ensure equal or enhanced representation of women or minority groups on the lists, and is far from implementing by purpose any of the ‘affirmative actions’. In a Joint Opinion on Moldova (2009), the Venice Commission and OSCE/ODIHR, stressed the importance of taking into account sizable national minorities living on its territory when deciding on an electoral system, recommending that ‘electoral system for the Parliament should create possibilities for adequate participation in public life of national minorities and mainstream interests at regional level.
Publicsubventions to the political parties Art.5 of the Law guarantees state support to parties. Budgetary support to the financing of political parties shall represent 0.2% of the total incomes forecasted to the state budget per year, and be distributed in 2 big shares: 50% - proportionate to the mandates received in general elections, validated by the Constitutional Court, and 50% - proportionate to the number of votes accumulated in local elections, under condition that political parties have received not less than 50 mandates in the representative bodies of the 2nd tier of governments. Obvious discrimination of small parties. Public state subsidies to political parties can be used (art.29 of the Law) to the maintenance of offices, staff costs, media advertising, international and domestic travel, communications, organisation and logistical costs for party activities, protocol costs, membership fees in various international organisations or networks to which the parties are affiliated, supplies, election spending, as well as capital investments in estates parties need for their activities. Art.31 stipulates an obligation of parties to disclose their all sources of funding, and report to the public.
To be eligible for financing, parties:- need to be financially accountable, - keep a strict track record of their revenues, collected from membership fees, donations, or other incomes generated from party assets or properties. In conformity with a Regulation approved by the Ministry of Justice (art.30 of the Law on political parties), parties shall present till March 31, every year, financial reports to the Auditing Court, Ministry of Finance and Ministry of Justice, allowing state auditors to verify how state subventions have been used by the beneficiary parties, and intervene, in case some of the incurred expenses will be not seen as eligible for the existing regulations. Political parties cannot be eligible, if: - their activities were limited by a proper court decision, - they have lost their legal statute, - they have committed repeated infringements upon the financing of parties, - or, they are in the process of being dissolved. equally, parties that have exceeded the top-limits imposed by legislation for expenditures during elections, as well as for parties that have broken these limits repeatedly will be ineligible for state financing.
Loans applied to political parties Political parties may receive loans from the state budget for upcoming elections (art.35 of the Election Code). Other costs for the preparation and organisation of elections are covered by the state. Candidates shall report to the state on the expenditures used and those which shall be returned (if not spent), but no specific disclosure procedures are stipulated in Election Code, but a reporting to CEC. Limits of the allowed resources are set up by CEC. Every candidate in elections will appoint a financial coordinator (treasurer). Legislation prohibits financing of campaign from: citizens younger than 18 years old, state/public funded organisations, anonymous persons, charity and religious organisations. Law on political partiesof Dec. 21, 2007 provides a more detailed description of the disclosure procedures and accountability rules, but financing will be allocated only from 2013. Loans received from the state are completely or partially irradiated according to the total number of votes freely expressed, received by the election competitor in the respective election district. Election actors that received less than 3% of the total votes at the national level, or in the respective election districts, i.e. independent candidates that failed to get election, will pay back the received state loans during 2 months from the date of elections, while other competitors will return the above mentioned loans in 4 months time.
Enforcementofregulations and internal mechanisms of responsibility Only Ministry of Justice is the appropriate public authority, entitled with the right to keep full evidence of the existing parties, their activities, performances, and statutory revisions, through its Registry of political parties (art.11). Parties whose registration is postponed or rejected by the Ministry can fill a plaintiff to the Appeal Court (art.8). But, suspicions on politicisation of the Direction persisted.Financial reports are to be presented by political parties to 3 state authorities: Auditing Chamber, Ministry of Finance and Ministry of Justice, till 31 March every year (art.30). By law, internal organisation of political parties rests on their statutory documents, registered (and supervised by the legal authorities). This proves to be rather insufficient to held party leadership accountable by party members, as several party conflicts have shown recently. Art.13 of the Law request political parties to clearly stipulate the mechanism of disciplinary sanctions. Art.18 of the Law stipulates the liability of political parties for contractual obligations with their party properties.
Summary of the main issues on party regulations: policyrecomendations
Simplify requirements for the registration of political parties (possible on-line registration), similar to the business entities on the basis of self-declared statement, followed by regular verification and monitoring, thus, allowing individual political groups to emerge and grow on; Better regulate political parties in applying financial and patrimonial disclosure procedures, thus providing transparent and accountable reports at the request of the public (simple citizens) or regulatory bodies. Better regulate how political parties shall further enhance their representative bodies, thus conforming to the existing EU standards,and provisions of the gender balance, which shall be subscribed by democratic parties following existing standards of representation for women, men or some ethnic/linguistic minorities. Prohibit unauthorised, unofficial or unregistered sources of financing to political parties, including non-pecuniar forms of state support via the use of ‚administrative resources’ in campaign to the benefit of a single party or group of parties; Keep in separate accounts state financing and private donations, which shall allow party members, and ordinary citizens, to monitor and ensure strict observance with party’ charter regulations, and party contributors; Revise party spending limits, in accordance with effective costs for carrying out campaigns and ordinary activities of a political party, according to the legal requirements. Exclude undue restrictions of financing from Moldovan citizens residing abroad, but adjust the limits to the practices and standards existing in other countries; Strengthen obligations of parties to report their spending during election campaigns, and regular annual reports, openning up these reports to citizens, in addition to state-led controls; Implement the Law on political parties in full, including by securing necessary financial support to political parties support already in 2011, and create positive incentives for parties to comply with legal requirements.
Enhance party regulations on the selection of candidates for the runoff, enhancing instruments of internal control and accountabilityagainst authoritarian leadership, or illicit behavior; Assimilate practices and standards of ‚affirmative actions’ in order to create possibilities for adequate participation of national minorities and mainstream interests at regional level; Clearly set up possible sanctions for party leadership in case of deliberate actions, damaging party’s activities, or deliberate irregularities, ended with judicial restrictions, enabling party members to intervene and address these kind of situations, making necessary efforts to bring into conformity actions or statutory documents of the parties, etc. Increase internal control mechanisms over party finances, incomes, donations, fees, other revenues from party-controlled subordinated business entities, thus allowing ordinary members and general public to get aquinted with party integrity; Install stricter mechanisms of controlling sources of funding durng campaign, which shall coincide with the official reports presented to the state authorities annually;
Improvement of the Election Code: Electoral threshold set up in 2008 for political parties and independent candidates shall be revised and decreased (6% for parties,3% for independent candidates), enabling more pluralism and participation; A National Registry of Voters including a comprehensive review of the voters’ lists shall be implemented and used during organisation of elections, restricting further the use of supplementary lists; Ensure appropriate conditions of Voting Abroad for Moldovan citizens located ouside of their country, with appropriate mechanisms and procedures to exercise free, secret, democratic right to vote; Consider reformation of the existing election proportional system: from the current ‚one-country-one-election precinct’to a mixed (proportional-majority system), based on regionally-defined multiple-precincts. Bring in line the provision for the denial of the right to vote to persons detained on the basis of a minor infractions, or serving a sentence following a court ruling with the latest jurisprudence of the ECHR; Abide by the principle of presumption of innocence proceedings in those cases of violations of the law that can lead to the revocation of a candidacy; Regulate in great detail all how administrative resources could not influence organisation of elections, preventing abuses from the incumbent state officials or civil servants to favor one or another political party; Remove turnout requirements for elections to be recognised as valid in order to avoid potential endless cycles of failed elections; Setting up separate election precincts for the voters residing in Transnistria, use of current mediation format to ensure necessary conditions for the organisation of turnout.