How the Moldovan authorities washed their hands of a corona-election
This is a translated and slightly adapted version of an article originally published in Romanian on March 15.
On March 15, a snap election for a vacant MP position was held in Hîncești constituency, several kilometers southwest of Chișinău. This was despite a Code Red coronavirus alert imposed across the country (and which on March 17 was upgraded to a full state of emergency).
On election day in the morning, the Central Electoral Commission (CEC) held a briefing to explain why it couldn't postpone the vote. The argument put forward was that the Constitution and the legislation in general says the right to vote can only be restricted if Parliament decrees a national state of emergency. The minister of health and the President repeated the same argument.[1] [2]
The electoral authority decided to go ahead with the election after on March 14 in the evening it requested the opinion of the National Extraordinary Commission for Public Health (CNESP), the Supreme Security Council and the Hîncești Emergency Commission. CEC says it received answers from the latter two institutions, which responded that the Code Red restrictions did not cover elections and which advised instead that adequate measures be taken to prevent the spread of the disease. So CEC assured that polling places would be disinfected frequently and proceeded to open them up in the morning.[3]
Beyond the fact that CNESP remained silent, despite having more medical expertise, the legal argument put forward by CEC is false.
What CEC said
Dorin Cimil, president of CEC: "Both the Moldovan Constitution and Law 212/2004 on the State of Emergency, Siege or War states that restrictions to rights or freedoms may only be introduced by Parliament resolution, while the electoral legislation says that the voting process shall be suspended in cases of civil unrest, natural disasters and other unforeseen circumstances that can put voters in peril or render voting impossible."[4]
Any lawyer, whether a constitutional expert or not, knows that rights and freedoms can be restricted NOT only during a state of emergency, siege or war. In fact, any layman understands that if you are being pulled over for speeding, your freedom of movement is being restricted. No state of emergency is required. If you fail to pay your taxes, the government can restrict your property rights. And so on. Why would the postponement of a snap election in one constituency for several weeks or months require the imposition of a state of emergency then?[5]
Fact-CEC
CEC clearly misconstrues what the Constitution and the Electoral Code says. The relevant Constitutional article, 54 to be exact, says nothing about the requirement of a Parliament resolution. What it says is that "the exercise of one's rights and freedoms shall not be subjected to any restrictions other than those provided by law, which [...] are necessary in the interest of social security, [...] public order, with the purpose of preventing civil unrest and crime, of protecting the rights, freedoms and dignity of other persons [...]."[6]
The Electoral Code doesn't require any formal state of emergency either. Rather, it allows for a suspension in case of "unforeseen circumstances that can put voters in peril."[7] Such circumstances could have been, and in a way were, found to be the case by the National Extraordinary Commission.
Moreover, Law 212/2004 on the State of Emergency was straight-up misquoted by CEC. It actually says that "during a state of emergency, [...] it shall not be permitted *[...] to hold elections of central and local authorities or national and local referenda."[8] The Law simply does not say that, without a state of emergency, elections may not be postponed. It's just a terrible case of misinterpretation.
Emergency or not
As a matter of fact, in Law 212/2004, the list of measures that may be applied during a state of emergency does not contain the postponement or cancellation of elections. Instead, the list contains other measures, such as travel restrictions, lockdowns, or specific work arrangements for businesses and public institutions. That is, all those measures already imposed by the government under the Code Red alert earlier, without the need for a special Parliament resolution.
By the way, the government already restricted some important civil rights – the right to assemble and the freedom of conscience in particular – when it banned church services (a measure that it fails to enforce, though). The same goes for the isolation rules and the travel bans, which qualify as restrictions of the freedom of movement and which were introduced prior to the state of emergency. Again, no Parliament resolution was needed.
The Silence of the Commission
As it follows from the statements made by CEC president Dorin Cimil, of the three institutions that CEC asked on the eve of the Hîncești election, only the National Extraordinary Commission didn't answer. This is despite the fact that it has the power to declare public health emergencies and coordinate any actions necessary to prevent, mitigate and respond to such threats.[9]
The silence of the Commission is all the more strange since it acted with determination in introducing other measures earlier. Also strange was the silence of prime minister Ion Chicu, who heads the Commission. On Sunday morning, as the election started in Hîncești, the prime minister held a press briefing to give updates on the epidemic, but did not mention Hîncești once. He also refused to take questions. Meanwhile, he announced further drastic measures, including the closure of all retail trade except groceries and a few important others. All that without a national state of emergency approved by Parliament.
In fact, it's the prerogative of Chicu's Commission to declare a public health emergency and not of Parliament.[10]
Who's to blame?
What CEC did on Saturday comes into conflict with what it said on Sunday. If the election could only be suspended or cancelled via a Parliament resolution, as CEC claims, why would it even bother to ask CNESP about the "opportunity to continue the activities of organizing and conducting the election"?[11]
As explained above, the "state of emergency" argument is rather some legalistic sleight-of-hand than a valid point. An inexplicable exception in a series of otherwise forceful measures. But what about the role of CEC and CNESP?
On March 10, CNESP imposed a blanket ban on gatherings of 50 or more people.[12] Somehow, an election in a constituency with more than 60,000 registered voters and 44 polling stations in the eyes of the authorities did not amount to an event falling under that interdiction. CEC could have ascertained that fact and could have requested the suspension under Article 56 of the Electoral Code, quoted above.
For its part, CNESP could have clarified beforehand whether the general ban covers elections as well. At the very least, CNESP should have answered to CEC before the election. But CNESP and the prime minister simply chose to ignore the matter.
It seems that the two institutions passed the buck of responsibility between each other to ultimately shift it to Parliament. Still, according to Article 103 of the Electoral Code, it's CEC which is responsible for organizing elections.
The exception that harms the rule
During his briefing on March 15, prime minister Ion Chicu appealed to the responsibility of the general public, businesses, religious groups and public authorities during these times of crisis, when social distancing is the most effective solution for containing the pandemic. The prime minister announced further restrictions that have a significant impact on people's lives, restrictions that haven't been challenged so far and probably will never be.
In the context of this appeal, the Hîncești election is an inexplicable exception. The authorities ignored the exigency of being responsible and cautious in the face of a serious threat. Instead, they used the usual legalistic sleight-of-hand.
The MP seat went on to be won by the Socialist Party's Ștefan Gațcan, a doctor by the way. The next day after the election, two villages in the district of Hîncești were put on lockdown. Today, the district is the second worst-hit territorial unit in Moldova, after Chișinău municipality. While this is not a direct consequence of the election, the authorities knew the district was affected and decided to conduct the election anyway. We received assurances that all the suspect cases and contacts had been identified and barred from coming to the polling stations, but are these assurances enough?
And one more thing. Regardless of how this case ends medically, it has already ended badly for the independence of the electoral authority and of the "technocrats" in the Moldovan government.
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Dumbrăveanu: "Noi am fi vrut stoparea alegerilor de la Hâncești!" De ce nu a fost amânat, totuși, scrutinul?, tv8.md ↩︎
Dodon a permis organizarea alegerilor de la Hâncești: "Parlamentul nu a declarat stare de urgență, asediu sau război", tv8.md ↩︎
Briefing organizat de Comisia Electorală Centrală privind desfășurarea alegerilor parlamentare noi în circumscripția electorală uninominală nr 38, municipiul Hâncești, facebook.com ↩︎
ibid. ↩︎
Constituția Republicii Moldova. Comentariu, p. 216, constcourt.md ↩︎
Constituția Republicii Moldova, lex.justice.md ↩︎
Codul Electoral, lex.justice.md ↩︎
LEGE Nr. 212 din 24-06-2004 privind regimul stării de urgență, de asediu și de război, legis.md ↩︎
HOTĂRÎRE Nr. 820 din 14-12-2009 cu privire la Comisia națională extraordinară de sănătate publică, legis.md ↩︎
LEGE Nr. 10 din 03-02-2009 privind supravegherea de stat a sănătăţii publice, art. 58, legis.md ↩︎
Cu referire la situația epidemiologică din țară..., facebook.md ↩︎
Hotărârea nr. 7 din 13 martie 2020 a Comisiei naţionale extraordinare de sănătate publică, moldpres.md ↩︎