Igor Munteanu, Executive Director, IDIS "Viitorul": Regulation of political parties: critical reflections and proposal for the institutional environment
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Igor Munteanu, Executive Director, IDIS "Viitorul": Regulation of political parties: critical reflections and proposal for the institutional environment






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    Igor Munteanu, Executive Director, IDIS "Viitorul": Regulation of political parties: critical reflections and proposal for the institutional environment Igor Munteanu, Executive Director, IDIS "Viitorul": Regulation of political parties: critical reflections and proposal for the institutional environment Presentation Transcript

    • Institutional context for political parties Constitutional provisions(1994) Regulations of the specific legislation on political parties (2007) Electoral Code (1997) The general principle of protecting and regulating the freedom of political association (art. 41) – Parties and other social-political organizations are equal before the law (art.41-2), The principle of legality – The state guarantees the respect of rights and legal interests of parties and of other social-politica organizations (41-3) The principle of elective democracy -”The will of the people constitutes the basis of state power. This will is expressed through free elections, that are held regularly by equal, direct, secret and freely expressed universal suffrage”. (art.38-1). The principle of direct and freely expressed universal vote – The citizens can exercise their right to vote, but also, to be voted in accordance with the existing laws for state elective positions (art.39-3). This implies that no discrimination can be applied towards Moldovan citizens participating in elections in order to be elected for certain eligible positions. Ion Beschieru, Expert Juridic IDIS “Viitorul” critice și propuneri 7/5/2010 Reglementarea partidelor politice în RM: reflecții
    • Regulatory provisions on the operation of political parties inMoldova Law on political parties (2007): - replaced the Law on political parties and other social-political organizations (1991), which regulated the activity of „fronts, leagues, mass political movements, etc” excluding the independent organizations of citizens, that are established to promote the professional or cultural interests and don’t seek to participate to the creation of state bodies” (elections). - responded to some critics and recommendations for law amendments (12 amendments) = Constitutional Court Decisions No.37 of 10.12.98; No.3 of 29.01.99; No.11 of 03.06.2003 Observations and comments of the Council of Europe’ experts“, reports of the committee of monitoring membership obligations and CoE recommendations (report of 14.09 2007. Doc. 11374) - http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta07/EREC1810.htm The paragraph 16.1.1 - Resolution 1572 (2007) – Honouring of obligations and commitments by Republic of Moldova, Assembly of debate from 2nd of October 2007 (31st meeting) (see Doc 11374, Report of the Committee for respect of obligations and commitments by member states of the European Council (Monitoring Committee), co-rapporteurs: Mrs. Durrieu and Mr. Vareikis).Text adopted by the Assembly on 2nd of October 2007 (31st meeting), http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta07/ERES1572.htm The new law defines political parties as „voluntary associations, with statute of legal person, of the Moldovan citizens with the right to vote which through joint activities and based on the principle of free participation, contribute to the design, expression and realization of their political will”(art.1-1). Ion Beschieru, Expert Juridic IDIS “Viitorul” 7/5/2010
    • Advantages and disadvantages of the legislation on parties adopted in 2007 Welcomed progresses – - Uses a more precise definition of the parties, of its leading bodies and of the followed purposes. - Supposes public funding for parties, stipulating specific mechanisms of accountability, monitoring and transparent use of political finances, already plans funds in 2008 for political parties financing according to the criteria of relevance and election results. - Strenghtens the parties mandatory reporting mechanism (disclosure) which are obliged to submit annual financial reports until March 31, so that these reports be checked by the Audit Chamber, Ministry of Finance and Ministry of Justice. - Art.13 of the Regulation on financial reporting by political parties (Order of the Ministry No.559 30.12.2008) also foreseed a specific period of 10 days for publishing these reports on the website of the Ministry of Justice. Although the failure to comply with this request attracted legal sanctions for parties, the Ministry has never applied this provision. - Strengthens the penalties against parties that advocate against sovereignity, territorial integrity, democratic values and legal order of the R.M., through programmatic goals and specific activity using violent means to the detriment of fundamental freedoms and democracy. (art.3-1) Regrettable restrictions – - Reiterates the principle of territorial representation in registration (re-registration) of political parties - (art.8-d) – party members should be residents in at least half of the number of II level units (32 counties/rayon) but not less than 120 members each, or 1920. - Article 22 of Law on political parties also included some exceptional penalties for parties that aren’t involved with the list of candidates in two consecutive campaigns or acumulate each time Ion Beschieru,of votes Juridic IDIS “Viitorul” a fewer number Expert than the necessary number of members, required by the present 7/5/2010 legislation at the registration of political parties, following that these parties could be warned.
    • Examples of law provisions on political parties which are in conflict with the rules regarding the ensurance of the right to political association (ECHR) Penalties for parties that aren’t involved with the list of candidates in two consecutive campaigns or acumulate each time a fewer number of votes than the necessary number of members, required by the present legislation in the registration of political parties (art.22), art.11 of the European Convention on Human Rights and Fundamental Freedoms: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. Restrictioning the creation of regional parties. They can be registered only if they are able to expand beyond their regional boundaries, and represent, as requiered by law on political parties „at least half of the existing sub-national administrative-territorial levels with at least 150 members in each”. Until 1998, regulations on parties were less strict in this regard. The firs law on political parties (Nr. 718 of September 1991) has allowed political parties to be registered at the regional level, confirming, in fact, the political realities of that time, described in terms of ethno-political mobilization and disorders at the level of different regions from the rest of the country (Gagauzia and Transnistria). Although the actual number of founders (1420) is not very high, territorial representation requirement of party members is seen as a restrictive condition by those who would like to join or to see registered certain regional parties (read – set in national, linguistic or ethnic terms) in certain parts of the country. Also the restriction to not register parties based on national, racial or ethnic principles gets into conflict with the provisions of the ECHR Art.11, regarding the protection of the right of political association, to the extent in which a group of this kind doesn’t act in a way that would justify the application of one of the regulation exceptions listed in the ECHR artic. 11.2 for this case. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • Assets and financing of the political parties Art.24 – political parties may dispose of buildings, equipments, publishing house, machinery as well as other goods, that aren’t prohibited by law, to be used in strict accordance with the statutory purposes and under strict supervision of the party governing bodies. The income obtained by political parties will be exempted from taxes (VAT) and will be taxed under the Fiscal Code (wages). Insolvency? Art. 25 of the law lists the main funding sources of political parties: membership fees, donations, i.e. collected from various cultural, sport, recreational activities, mass activities organized by parties, subsidies from the state budget. The fees are determined independently, but cover only an insignificant part of the actual costs. Art. 26 – political parties can receive donations, but the annual income for a party shouldn’t exceed the equivalent of 0.1% of all incomes for this year in the state budget. Without restrictions on the number of political parties that can receive donations from individuals, only that the amount of all donations can’t exceed 500 monthly minimum wages, according to official estimations for the given year per national economy. Legal entities can’t donate in a budgetary year the equivalent of more than a 1000 monthly average salaries, or approximately 2,7 million lei (156184 Euro). Law on political parties (2007) includes as a novelty, a special chapter that regulates state funding of political parties (article 28), but enforcement until 2010 was delayed due to the economic crisis from 2010. Law requires political parties to keep a register of donations, Ion Beschieru, Expert Juridic IDIS “Viitorul” which has to include names, residence of the donors and received donations (article 27).
    • Restrictions on political parties financing Prohibition of any direct or indirect financing, material support available to existing political parties from the outside (the term includes - other countries and international organizations, private entities, foreign institutions funded by foreign countries or by private companies with foreign capital, NGOs, trade unions, charity organizations, churches). Prohibition of some donations offered to the parties by Moldovan citizens, provisionally situated abroad. Prohibition to receive donations from foreign nationals who are not citizens of the Republic of Moldova, anonymous person, or third parties, such as private or state enterprises. Law of 2007 defines the situations when parties can lose their right to request public funding if: (1) their work has been limited or suspended, (2) they have lost their legal status, (3) they violated the regulations on party financing, or (4) which are in the process of self-dissolution. Public subsidies offered to political parties from the state budget can be used (Art. 29 of Law) for maintaining offices, staff costs, advertising in mass-media, international and local travels, communications, logistical and organizational costs of the party, protocol costs, membershipfees in various international organizations or networks withwhichparties are affiliated, materials, election expenses and capital investments in goods which are required forthe partiesactivity. The law also stipulates that the Ministry of Finance, the Court of Auditors and the Ministry of Justice will supervise the appropriate usage by these parties of state funding (Article 30), and in case of irregularities, the funds will be returned by these parties, by the decision of the Court of Appeal, to the state budget. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • Preserved risks in abusive usage of political funding Studies show a dynamic increase in political expenditures for the campaigns during 2001-2009. If the maximum limitallowed by the Central Electoral Commission in 2001 wasestimatedto 1 million lei, in 2005 it represented 2.5 million lei, and in general elections in 2009, it reached 12 million. The same progress of expenditures is reflected for the participation of independent candidates: if in 2001, registered candidates could spend no more than 50 000 lei, in 2005 - it reached 100,000 lei, and in 2009 to 500,000 lei. Reports on campaign expenditures are treated as public information and therefore have been posted by the CEC on the website (Rec. CM 2003 (4) referring to common rules against corruption in the field of political parties and election campaigns - doc. GRECO Base. Besides the visible growth of the political expenditures in the political campaign - about 2.5 times in less than eight years – we also find other contradictions. Furthermore, an independent candidate doesn’t have the right to spend more than 500,000 lei in its election campaign, but an individual can make donations 3 times bigger than parties. Also, the Electoral Code establishes reporting obligations of costs for banks that authorize the opening of the political accounts to report in 24 hours after the first delivery of funds, and not on political parties. This requirement, allocated to banks, and not to political parties, weakens the accountability of parties on responsible usage of resources. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • Disciplinary sanctions for parties Political parties can be dissolved (Article 22) in the following situations: re-organization, which may lead, consequently, to the loss of the legal entity, self-dissolution, through the final decision of the governing body dissolution, made through a final decision of the Court of Appeal (Chisinau) Constitutional Court decision, which could find that a specific part of the activities are "unconstitutional." The Ministry of Justice may request the dissolution of a party in case of the following circumstances: - The party operates under a different statute and program from the official documents presented for registration, by the respective party, at the Ministry of Justice - The respective party has committed many irregularities during the last year, which according to law must be punished; - The respective party has not participated in the last two consecutive parliamentary elections or has accumulated within the last two elections a smaller number of votes than the necessary one to register a party; - The respective party has committed acts of violence or unlawful means were used to carry out party activities; - Some activities of the respective party have been declared "unconstitutional" by the decision of the Constitutional Court. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • FINDINGS AND PROPOSALS Improving the law on political parties: 1. Simplification of the PP registration requirements, by removing the criteria of territorial representation, according to article 11 of the European Convention on Human Rights and Fundamental Freedoms (1950), which protects the right to political association; 2. Updating the monitoring procedure of the parties, with possible on-line registration of political parties, and maintenance of state records, based on their own statements, followed by further checks, which would support the effort of groups to establish and develop; 3. Modification of the law on political parties as regards the rules related to the size of private donations (individual or corporate) in order to reflect the general socio-economic situation in the country, and the real living standards of the vast majority of citizens. Systemic logic of political funding creates discrimination in public funding for the benefit of the ruling parties on the account of other stakeholders, included in the election campaign. 4. Acceptance of private contributions to political parties, which should follow simple and transparent rules of political parties funding. Strict regulation of how political parties will apply the provisions of the statement of income and property, providing transparent and recorded reports at the public request (ordinary citizens) or of the regulatory bodies and ministries. 5. Replacing the current distribution mechanism of state subsidies, based on the number of Ion Beschieru, the distributionIDIS “Viitorul” mandates, with Expert Juridic based on scores, with the aim to redress the effects of concentration.
    • FINDINGS AND PROPOSALS Improving the law on political parties: 6. Applying a lower threshold - not just the election one – but that of the parties’ registration with the aim to encourage smaller political groups to grow and become publicly recognized. Public funding will generate additional facilities for political parties that would like to supplement their budget from the account of some private resources; in this respect, one solution would be that each financial unit collected by political parties through these mechanisms could be supplemented with some equivalents from the state budget. This will increase competitiveness on the political arena, enhancing a sustainable interaction between parties and voters, influencing the accents of the campaign for collecting resources – to smaller donors and the creation of useful connections with territorial constituencies. 7. Clear provision on how political parties will further improve their representative bodies, in this way complying with the current EU standards and the requirements for gender equality, which will be underwritten by the democratic parties following the existing standards of representation of women, men and ethnic and linguistic minorities. 8. Strict regulation of penalties for both unauthorized and informal use of resources, and other sources during the campaign and beyond, inclusively non-monetary sources of state support, provided through the use of administrative resources for campaign purposes in the benefit of a single party or a group of parties; 9. Clear regulation of separate accounts maintenance by political parties for state funding and private donations, which would allow to party members and ordinary citizens to monitor and to ensure the observance by parties of the statutory regulations and party contributors. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • FINDINGS AND PROPOSALS Improving the law on political parties 10. Exclusion of certain unfair restrictions regarding the political funding from citizens living abroad, but to adjust the limits to existing standards and practices in other countries; 11. Reinforce the obligations of parties to report expenditures during campaigns, and annual reports, offering access to citizens to these reports, additional to checks initiated by the state or other controls; 12. Fully implementation of the Law on political parties, including the securing of the necessary financial support to political parties already in 2011, and creating positive incentives necessary for parties to comply with new regulations; 13. Clearer dissociation of parties involved in the election of non-commercial public entities, which should act without affiliation, independent public associations, that can not participate as candidates in the elections. 14. Central Election Commission may increase the role and its authority by means of political funding compliance. For the CEC is the only authority specialized in elections, it is absolutely clear that this authority has also the mission to monitor, investigate and verify the financial activities of political parties, and not only in electoral campaign but also in between campaigns. The distribution of responsibilities with other state bodies, such as the Tax Inspectorate, the Court of Auditors, not only complicates the institutional landscape, but also diminishes the lucrative nature, having a negative impact on the way of effective resolution of fraud and irregularities. Parties will accept the authority of the CEC and of the Ministry of Justice in respect of annual financial reporting terms, on revenues and expenses during the campaign, which would lead to a major change in the parties’ perception, trust in law and respect for law. Ion Beschieru, Expert Juridic IDIS “Viitorul”
    • FINDINGS AND PROPOSALS: PARTY INTERNAL REGULATIONS Usage of some affirmative action mechanisms in the regulatory practice of the parties, i.e. election to create effective opportunities for women participation, national minorities, disadvantaged areas, etc. (Amendment of acceptance mechanism of the electoral list by the CEC - not the first arrived - first served, but on a competitive basis (% women reported to the number of candidates in the established order by the party leadership (in comparison with the first 10-20-40),% of national minorities (owner group); Applying a mechanism of administrative penalties for officials of the party, responsible for committing or tolerating deliberate actions incompatible with the Statute and existing legislation, which would limit the voluntarism and discretion of party leaders, adopted through the judicial appeal. Application of partial restriction or dissolution mechanism which would allow party members to interfere and address these types of situations, making necessary efforts to bring in conformity activities or statutory documents of parties, etc. Applying strict supervision of parties income, donations, taxes, incomes from businesses subordinated to parties, allowing ordinary members and general public to familiarize themselves with the integrity of the party; The use of registering / modification procedures of existing parties’ statutes for continuous improvement of internal regulations and insurance of the quality selection of candidates on the eve of elections, mediation services exerted by the Ministry of Justice to combat conflicts between the parties and rebuttal of arrogant behavior of some party leaders. Politicalpartiesshould apply more stringent control mechanisms of funding sources during Ion campaign, which should coincide with the official reports presented to the state the Beschieru, Expert Juridic IDIS “Viitorul” authoritiesannually;
    • FINDINGS AND PROPOSALS: Improving the Electoral Process Reducing the electoral threshold: from 5% for parties and 3% for independent candidates to 3% and 1%, to allow more political pluralism and selection based on merits of the elected people; CompletingtheNationalElectronicRegister of Voters, afteranextensivereview of therelatedvoterlistsduringtheelections, continuousrestriction of the use of supplementarylists; Amendment of the Electoral Code to ensure the deployment of external voting of the Moldovan citizens living abroad, with the exercise of a free, secret and democratic right. Reforming the electoral proportional system: from a current single constituency of national level to a mixed constituency (MPS), based on multiple constituencies regionally defined, as a first step towards switching to a mixed electoral system in the 2011-2014 years; Strict supervision of electoral funding by one agency (CEC), through the improvement of the accounting mechanism of contributions, on-line announcement of public and private donations by political parties and independent candidates, with the CEC automatic verification. Respecting the principle of presumption of innocence in cases of law infringement, that could lead to the revocation of an application; Excluding the use of administrative resources in the campaign by the appliance of incompatibility in holding some official position and of the candidate status on the lists of a political party, preventing abuses of power by officials or civil servants, to the benefit of one or another political party; Elimination of the threshold turnout so that the elections are recognized as valid, in order to avoid endless electoral cycles. Strengthening democratic control over the election process in Transnistria and regulation of some conditions for the free participation of the Moldovan citizens in elections, usage of mediation format for enabling the necessaryIDIS “Viitorul” the organization turnout. Ion Beschieru, Expert Juridic conditions for
    • Mulțumesc pentru atenție! Thank you for your attention 7/5/2010