Stiffening Moldova's judiciary

Louis O’Neill
29 June 2009

Interesting things are afoot in the Republic of Moldova, where a freely elected communist leader who is constitutionally barred from another term after eight years as President nonetheless recently held three top positions simultaneously:  acting President, Speaker of Parliament and Head of the Communist Party.

In early June, the three Moldovan opposition parties maintained their unity - no small feat in Moldovan politics - and blocked two consecutive super-majority votes in parliament for a new president.  With this impasse, Moldova's paramount leader, Vladimir Voronin, dissolved the parliament and called snap national elections for July 29. 

Meanwhile, Voronin did have enough votes, with a simple majority, to put together an acting communist government and prime minister, giving him solid control over both the executive and the lame-duck legislature.  

Experts say that Vladimir Voronin's inter-branch straddle as Head of State and Head of Parliament was an obvious conflict of interest that is barred by the Moldovan Constitution and the Law on Members of Parliament.  Despite loud objections, Voronin refused to relinquish any of his collection of posts.  Rather, he fully exploited holes and contradictions in Moldovan law to keep his hand on all the levers of power in Moldova until repeat elections - and even beyond, if deadlock should continue.  

In a legal counter-move, a top opposition leader, Vlad Filat of the Liberal Democrats, filed suit with the Moldovan Constitutional Court for an expedited ruling on whether Voronin could remain both a legislator and president under Moldovan law.   With tortured reasoning, the Voronin-friendly court declined to hear the case on purely procedural grounds, issuing a letter of denial to the plaintiff rather than a formal decision.  Filat's party called court's abdication of responsibility "insulting" and now together with the rest of the opposition, has sought to press the legal case further.

Until crowds ran amok and burned the parliament following allegations of fraud during the parliamentary elections in April, Moldova had had the best track record of the former-Soviet states on democracy and the peaceful transfer of power.  Unlike a number of fellow members of the Commonwealth of Independent States which explicitly permit or readily countenance leaders-for-life, Moldova has had three different presidents and a vigorous opposition since independence in 1991, as well as a free, though frequently harassed, press.

Checks and balances

What has been missing in Moldova, however, is a real system of checks and balances, spearheaded by an independent, vigorous and unapologetic judiciary.  The next stage of democratic development requires a bold group of jurists to find the courage, in appropriate cases, to say "no" to the executive.  In so doing, they will do much to put an end to the widespread system of "telephone justice" that so erodes fundamental fairness in society.  To move forward Moldova must establish the judiciary as a co-equal branch of government deserving of people's respect, admiration and trust.

John Marshall, the first Chief Justice of the United States Supreme Court, did just that in 1803 with his landmark decision in the case of Marbury v. Madison, which established the authority for judicial review over all Constitutional questions.

Marshall was acting in circumstances not all that different from those present in today's Moldova.  Independence had only recently been achieved from a strongly authoritarian empire that was all too happy to undercut the new county's sovereignty.  The former colonial master was still running military operations nearby.  Political culture was rudimentary and nascent parties used pocket newspapers, rabble-rousers and occasional violence to advance their cause.  The judiciary was atomised and tame in this largely agrarian society.  Marshall, like the other Founding Fathers, was thinking big and concerned about what his words and actions would mean not just in twenty, but in two hundred years.  Marshall did not ask permission to find the Judiciary Act of 1789 unconstitutional - and thus establish an independent judiciary with review power over the actions of the legislative, executive, and administrative arms of government. He simply did it, breathing real life into the pretty, but as-of-then unfulfilled, words of the U.S. Constitution.

Political life might be very different in the United States if Marshall had not had the vision, courage and chutzpah to assert judicial review, even if poor Marbury really was due the government job for which he had sued then-Secretary of State James Madison.  This bold jurist's effort has resulted in a remarkable situation where, with extremely rare exceptions, court decisions are obeyed simply because everyone has respect for them and faith in the fairness of the system.  Coming from a history of rule by executive fiat and judicial co-equality only on paper, every post-Soviet country has need of its own Marbury v. Madison moment, where the courts assert their feistiness and independence.  Moldova's is long overdue.

Moldovans can fast-forward this process; they need not wait 200 years for their judiciary to evolve its powers, although of course the effort will require focus, perseverance and political will.  New EU members like Lithuania, Poland and the Czech Republic are ready to provide technical guidance on the transition to an independent judiciary.  Norway is already deeply involved with a rule-of-law project.  The EU has recently reiterated the need for Moldova to press ahead "as seriously as possible" with judicial reform.  And the OSCE Mission to Moldova released a valuable road-map in 2007 with its "Six-Month Analytical Report:  Preliminary Findings on the Experience of Going to Court in Moldova."

But this has not been enough to overcome the throw-back instincts of executive power to dial in desired outcomes.  Western donors need to consider boosting aid for legal reform through major programs like the  Millennium Challenge Account, Neighbourhood Policy and Eastern Partnership to compete with other, less fussy donors.

They also need to attach sharper conditionality to get the next Moldovan government's attention on taking concrete, sustained action to develop a truly independent judiciary.  Far too often for Western governments Moldova winds up like the child of professional, busy, divorced parents.  Distractions elsewhere and guilt lead to fat cheques being written, accompanied by a cursory check of Moldova's "homework" - the various action plans and benchmarks. But at the end of the day the country misses out on the hands-on guidance and discipline that is vital for real development and growth.  Moldova still has the potential to become a solid democracy in a tough neighbourhood. But now, facing a fork in the road, needs a little help to find its own John Marshall.  

 Louis O'Neill, an international lawyer, was OSCE Ambassador and Head of Mission to Moldova from 2006 to 2008. 

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