Chisinau, 23 November 2017 – the mixed electoral system should be applied no earlier than the 2022 election, and only after the settlement of the deficiencies highlighted by Promo-LEX Association. These are related to constituency formation criteria, opportunity to use administrative resources for the election, delegation of candidates to establish constituency councils and the territorial competency to settle electoral litigations on the territory of single-member constituencies.

The Analysis published by Promo-LEX focuses on the effects that could be generated by the implementation of the mixed electoral system, especially in the single-member constituencies, given the way the constituencies were delimited by the Special Commission established for this purpose. The Association has previously analysed the effects of changing the electoral system. Some of the identified problems refer to the fact that the Government Decision was passed without settling the notification filed with the Constitutional Court, the issue of voting by students, and the hurry in which this law was adopted.

In order to overcome the problems generated by the implementation of the mixed system of electing Members of Parliament, Promo-LEX Association presents, in its Analysis, a series of deficiencies and recommendations to the Parliament.

Recommended implementation of the mixed system – no earlier than for the 2022 election and only after the settlement of all deficiencies
Changing the system generates too many complex issues for the 2018 Parliamentary elections to be held on the basis of the new system. Thus, Promo-LEX Association recommends that the Parliament amends Law No 154/2017, so that the mixed system is implemented no earlier than for the 2022 Parliamentary elections and only after all the gaps are settled and citizens are informed better about this change.

Unclear calculations for constituency formation
The Law stipulates that one constituency shall have 55,000-60,000 voters, and the difference in the number of voters between constituencies shall not exceed 10%.

Contrary to these legal provisions, from 15 to 30 constituencies are established with a deviation from the 10% margin established by law.

Political opportunity to use administrative resources
Promo-LEX experts found that the use of administrative resources in the election campaign were not regulated clearly by the Law. Thus, if we notice that some mayors and district councillor belong to certain Paliamentary parties, we could assume that they would express their support for specific candidates for the position of MPs. There is, hence, a risk that they will ‘help’ their party colleagues by using the administrative resources and leverages at their disposal.

Problems with the establishment of constituency councils
District councils and courts of law

According to the law, the members of constituency councils are proposed by courts of law, district council and People’s Assembly of Gagauzia, as well as by political parties. As constituencies are established on the basis of several localities, it is not clear which district council (out of those included in the constituency) may propose candidates for the constituency councils.  The same is true about courts of law.

For more important data, electoral projections and territorial-geographic issues, please see the Analysis.

Contacts: Emil Gaitur, Promo-LEX Communicator – tel.: 069172642, email: [email protected]

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The signatory civil society organisations are concerned with the limited transparency of the activity of the National Commission for the Establishment of Permanent Single-Member Constituencies and requires the Government to make the Draft Decision Establishing Single-Member Constituencies available for public consultations.

This request was made in connection with the following flaws found with the implementation of the Law No 154 of 20 July 2017 Amending the Electoral Code.

• The provisions of the Code of Good Practice in Electoral Matters (Venice Commission) regarding the role of the Parliament in establishing constituencies were ignored.

According to Item 17 of the Code of Good Practices, ‘The best  solution would be to submit the problem in the first instance to a commission comprising a majority of independent members […] The parliament would then make a decision on the basis of the commission’s proposals, with the possibility of a single appeal.’[1]

Granting the right to set up permanent single-member constituencies to a political body, namely the Government, which is subordinated to the parliamentary majority, and the failure to include the boundaries of the single-member constituencies in the Electoral Code are major deficiencies of the mixed electoral system approved by Law No 154 of 20 July 2017.

• The Belated and Law-Braking Set-up of the National Commission for the Establishment of Single-Member Constituencies

As provided for in Article 74(2) of the Code, single-member constituencies are to be approved by the Government on the basis of a decision made by an independent commission, the membership of which is established by Government Decision. Article III of the Law No 154 of 20 July 2017, provides for a 30-day term within which the Government is to create the National Commission for the Establishment of Permanent Single-Member Constituencies (the ‘Commission’). In this respect, Promo-LEX Association, together with the Legal Resources Centre from Moldova, made a public statement on 21 August 2017, whereby they brought into the limelight the fact that the Government did not establish the National Commission within the term provided for in the law, as this term lapsed out on 20 August 2017. The nominal structure of the National Commission for the Establishment of Permanent Single-Member Constituencies was approved by the Government by the Decision No 708 of 6 September 2017, 17 days too late.

• Undermining the Independence of the Commission

On 18 August 2017, two days before the end of the term within which the membership of the Commission was supposed to be established, the Ministry of Justice launched for public consultations a draft Regulation on the operation of the National Commission for the Establishment of Permanent Single-Member Constituencies. Note that the final draft document was approved by Government Decision No 670 of 23 August 2017.In our opinion, the Government’s initiative to regulate the activity of a commission, which, pursuant to the law, is presumed to be independent and to draw up its own Activity Regulation, which should only technically be approved by the Government, is nothing but a direct interference in the work of this body and an intention to suppress its independence. Pursuant to Article III of Law No 154 of 20 July 2017, the Government, until 20 August 2017, was supposed only to approve the nominal structure of the independent Commission and set its activity mandate over time, as well as the deadline within which the established Commission will propose to the Government its own Activity Regulation.

• Limited Transparency of the Activity of the Commission

Considering the time that passed since the Commission was established and since its Activity Regulation was adopted, we may state that there is limited transparency of the activity conducted by this body. We remind, in this regard, that on the basis of the Action Plan of the Commission, [2]on 17 October 2017, public consultations were to take place regarding the method of establishing the constituencies. We found that there were no public consultations at all in the decision-making process of the Commission.

Although the meetings of the Commission were public and broadcast via the mass-media, the documents under development and the informative ones obtained from various authorities, as well as the minutes of the meetings, were not published in full. This, despite Item 19(h) of the Regulation, providing that the Secretary of the Commission shall cooperate with the mass-media to reflect the activity of the Commission, and despite Item 14 providing that the Commission shall be assisted by a secretariat, which is to be ensured by the State Chancellery.

This situation was mentioned in the Public Call of 4 October 2017 too, signed by the 17 non-governmental organisations of the Republic of Moldova and from the diaspora.[3] The civil society organisations drew attention, back then, to the fact that after having had 3 meetings, there were no minutes of the Commission on the web-site of the State Chancellery. What is more, the information about the discussions regarding the decisions made by the Commission was not accessible by the interested population.

At the time when this call was published, there were the minutes of the meetings of 12, 19 and 26 September 2017, as well as the links to the video recordings of the 8 meetings (link is inactive) on the web-site of the State Chancellery, on the ‘Activity of the National Commission for the Establishment of Permanent Single-Member Constituencies’ page.[4] Also, an announcement meant for the diaspora regarding the call for proposals on the establishment of constituencies was placed on the web-site by the Bureau for Diaspora Relations on 12 September (repeatedly posted on 20 September 2017).[5]Although the ‘Gente Moldava’ Association from the diaspora responded to this call and sent proposals, none of them were found back in any summary of divergences that was supposed to be published on the web-site of the BDR or of the State Chancellery in line with the requirements of the Law No 239 on Transparency in Decision-Making of 13 November 2008. According to this law and to the Government Decision No 967 on the Mechanism of Public Consultations with the Civil Society in Decision-Making, of 9 August 2016, the public authorities are under the obligation to ensure transparency in decision-making at every stage of it, to make sure the information is accessible and to ensure public consultations on draft decisions.

• Ignoring the Special Criteria for the Determination of the Number of Constituencies to be Established on the Left Bank of Nistru River, as well as for Voters Residing Abroad

Although both the Electoral Code and the Regulation on the activity of the Commission establish certain criteria to determine the number of permanent single-member constituencies on the left bank of Nistru River and abroad, the Commission totally ignored them. In its Opinion of 23 October 2017, Promo-LEX Association proposed equidistant and clear criteria, including on the basis of the Electoral Code provisions, which allowed to determine that six constituencies needed to be established abroad[6]. Also, an analysis conducted by ‘Gente Moldava’ Association from the diaspora concluded that five constituencies needed to be established abroad.[7] Remember that both the proposals made by Promo-LEX, and those made by ‘Gente Moldava’ were not discussed at the meetings. At the same time, the Commission approved the establishment of only 3 constituencies abroad and of 2 on the left bank of Nistru River, without explaining what criterion was used to establish 5 constituencies in these territories, nor where did the 3+2 formula come from.

• The interpretability of and failure to observe the demographic criterion for distribution used for the establishment of constituencies on the territory of the Republic of Moldova that is under the jurisdiction of the constitutional authorities

The number of registered voters was taken as the constituency establishment criterion. In this respect, pay attention that in compliance with the Electoral Code, the constituencies across the territory of Moldova that is under the jurisdiction of the constitutional authorities will consist of relatively equal numbers of voters – between 55000 and 60000 voters eligible to vote. Also, in keeping with the spirit of good practices, the Electoral Code provides that the difference in the number of voters from one single-member constituency to another must not account for more than 10%. We found at least the following issues in this regard:

• it is not clear what number will be taken as a basis for the maximum admissible deviation of 10%, since the range 55000-60000 leaves room for interpretation;
• only 10 constituencies fall within the limit of 55000 – 60000 (all of them in Chisinau Municipality);
• the difference between the most numerous constituency – 67278 (No 46, Ceadir-Lunga) and the least numerous one – 55161 (No 25, Chisinau Municipality) is of 12171 voters.

• The Obligation of the Government to Submit the Draft Decision Establishing Single-Member Constituencies to Public Consultations

Although the Electoral Code does not provide for a term within which the Commission is supposed to adopt and submit for Government approval the Decision Establishing Single-Member Constituencies, the Regulation provides for a term of 13 months before the mandate of the Parliament is over. At the same time, both the Electoral Code and the Regulation provide that no changes may be made to the constituencies in the last 12 months before ordinary elections. According to Article 63 of the Constitution and of the Constitutional Court Decision No 31 of 10 November 2010, the mandate of the Parliament is 4 months long and is starts on the date that the MPs are elected to the Parliament. The last elections in the Parliament took place on 30 November 2014 and, thus, the Commission was to submit the list of single-member constituencies to the Government until 30 October 2017, and the Government was supposed to approve it by 30 November 2017. The Commission voted the draft list of single-member constituencies meant to be submitted to the Government at the meeting of 30 October 2017. Considering the aforementioned, we believe that the Government has enough time to initiate public consultations on the matter.

• Lack of a decision, issued by the Constitutional Court, on the MPs’ notification on the control of the constitutionality of the Law No 154 of 20 July 2017

Through the notification No 117a, a group of MPs asked the Court to conduct a control on the constitutionality and declare unconstitutional the Law No 154 of 20 July 2017, which changed the electoral system of the Republic of Moldova[8]. In this respect, we believe that the decision establishing the single-member constituencies as part of implementing the Law No 154 of 20 July 2017, must be adopted after the Decision of the Court is pronounced. From the point of view of signatories, the Constitutional Court must examine the notification as a matter of emergency.

Considering the aforementioned and given the importance and the impact of upstanding and transparent decision-making regarding the establishment of single-member constituencies, the signatory organisations request:

the Parliament of the Republic of Moldova to:

• amend the Law No 154 of 20 July 2017 in order to implement it beginning with the Parliamentary elections of 2022;
• amend Article 74(4)a) of the Electoral Code in order to adapt the number used as a special criterion for the distribution to the current demographic realities and processes from the Republic of Moldova, consideration given particularly to the number of voters abroad;

the Government of the Republic of Moldova to:

• organise a public consultation of the draft Government Decision until the decision approving the list of permanent single-member constituencies is adopted;
• ensure that, in the spirit of the provisions of the Code of Good Practice in Electoral Matters (Item 17), it has the possibility to remit for re-examination, whenever necessary, the list of electoral constituencies, drawn up by the Commission, accompanied by the relevant recommendations, formulated including during public consultations;
• ensure the accessibility of all the Commission’s documents that preceded the development of the draft decision;
• approve single-member constituencies, when the Constitutional Court sets out its views on the notification No 117a submitted on 5 September 2017 by a group of Members of Parliament.

the Constitutional Court to:

• examine rapidly the notification No 117a on the conduct of a control on the constitutionality and declare unconstitutional the Law No 154 of 20 July 2017

the Commission for the Establishment of Single-Member Constituencies to:

• publish, as a matter of emergency, all the minutes of the Commission’s meetings;
• publish documents that would explain the criteria used for the establishment of the constituencies. We mean, particularly, the distribution of those 5 constituencies in the Transnistrian region of the Republic of Moldova and for Moldovan citizens residing abroad on the election day or the explanation of the relation between the number of voters in constituencies, whenever necessary, and the requirement that the deviation in the number of voters in single-member constituencies should not exceed 10%.

Signatories[9]:

1. Promo-LEX Association
2. Legal Resources Centre from Moldova (LRCM)
3. Center „Partnership for Development”
4. East Europe Foundation
5. Institute of Public Policy
6. Centre for Policies and Reforms
7. md
8. Association of Independent Press
9. Institute for Development and Social Initiatives „Viitorul”*
10. AGER*
11. Transparency International Moldova*
12. Center for Independent Journalism*

*Appeal signed after approval of Government decision, 18.30

[1]http://www.roaep.ro/legislatie/wp-content/uploads/2013/03/Codul-de-bune-practici-in-materie-electorala.pdf

[2]http://brd.gov.md/sites/default/files/planul_de_actiuni_calendaristic.pdf.

[3] Public Call on the Transparency of the National Commission for the Establishment of Permanent Single-Member Constituencies, 4 October 2017, http://crjm.org/wp-content/uploads/2017/10/17-10-04-Apel-transparenta-comis-circumscriptii.pdf.

[4]http://cancelaria.gov.md/ro/apc/activitatea-comisiei-nationale-pentru-constituirea-circumscriptiilor-uninominale-permanente.

[5]http://brd.gov.md/ro/content/biroul-relatii-cu-diaspora-lanseaza-anuntul-repetat-privind-constituirea-circumscriptiilor.

[6]The OPINION of Promo-LEX Association on the number of single-member constituencies to be created abroad and their distribution according to geographic areas. https://promolex.md/10646-opinia-asociatiei-promo-lex-cu-referire-la-numarul-de-circumscriptii-uninominale-care-urmeaza-a-fi-create-peste-hotarele-tarii-si-repartizarea-acestora-potrivit-zonelor-geografice-1/?lang=ro

[7] ‘Gente Moldova’ Association, Venice, Italy, Comments regarding the establishment of single-member constituencies beyond the borders of the Republic of Moldova, 25 September 2017, https://drive.google.com/file/d/0BxwIRtSMdesFMXVzRFk3dDZzTDg/view.

[8]http://constcourt.md/ccdocview.php?tip=sesizari&docid=677&l=ro

[9]The list remains open for other signatories.

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New Legal Provisions

According to the new wording of the Electoral Code, the Parliamentary elections shall be held on the basis of a mixed voting system, in a national district encompassing the whole territory of the Republic of Moldova and the polling stations from abroad, as well as on the basis of 51 single-member constituencies, including the communities from the left bank of the Nistru river (Transnistria) and from abroad. The Parliament, as the supreme legislative body, has not established exact weights for the constituencies to be created abroad and in the territorial-administrative units with special status. In this context, the constituencies have to be created in accordance with the criteria set out in the Electoral Code and the general recommendations suggested by the international standards.

Methodology for Calculating the Number of Single-Member Districts to Be Created Abroad

Promo-LEX Association used two indicators to determine the number of constituencies to be created abroad:

• the number of citizens left for/staying abroad. According to the data presented by the Ministry of Foreign Affairs and European Integration (MFAEI)[2] 805,509 Moldovan citizens were abroad in 2016;
• the number of voters abroad who participated in the last national election[3], i.e. 138,723 people who received ballot papers during the second round of the presidential election.

These indicators and figures were divided to the total number of Moldovan citizens, as well as to the total number of voters[4]. An approximate number of single-member constituencies that should be created abroad was calculated for each of the two indicators mentioned above on the basis of the total number of 51 single-member districts to be created in the country.

Thus, by dividing the number of citizens from abroad to the total number of Moldovan citizens, we would get 20.29%; respectively, 20.29% of the total of 51 single-member constituencies would constitute about 10 constituencies that should be created abroad, according to the first indicator (see the details in Table 1).

Table 1

Similarly, according to the calculations done on the basis of the number of voting citizens from abroad, who participated in the 2016 Presidential Election, 4.26% of the total number of voters from SVR voted outside the country; respectively, 4.26% of the total of 51 single-member constituencies would constitute about 2 constituencies that should be created abroad, according to the second indicator (see the details in Table 2).

Table 2

By summing up the weights obtained for these indicators (20.29% + 4.26%), we obtain a total coefficient of 24.55%, which in its turn should be divided to the divisor 2 (the number of indicators taken into account), resulting in an aggregate weight of 12.28%. Thus, the aggregate weight of 12.28% is the coefficient to be taken into account when determining the number of constituencies that should be created outside the country (out of a total of 51 constituencies)[7].

In conclusion, according to these calculations, the diaspora citizens should be assigned about 12.28% or 6 constituencies of the total of 51 single-member constituencies.

Determining the Geographical Areas and the Number of Single-Member Constituencies to Be Created in Each Area

According to Article 74(5) of the Electoral Code, the authority responsible for creating single-member constituencies shall take into account the following condition when creating them abroad:

1. the information held by the Moldovan diplomatic missions and Consular Offices in the countries of residence;
2. the information held by the central public authorities, including the relevant official statistical data;
3. the information resulting from prior registration of citizens staying abroad, in accordance with the procedure established by the regulation approved by the Central Electoral Commission;
4. the number of voters who participated in the last election;
5. other relevant data obtained by the central public authorities, upon request, from the authorities of the host country, as prescribed by law;
6. when establishing the boundaries of constituencies created abroad, the Commission shall act in accordance with the regulation approved by the Government, and shall take into account the relevant geographic areas, such as:
   • the Member States of the European Union, Norway, Iceland, Switzerland, Liechtenstein, San Marino, the countries of South-East Europe that are not members of the European Union, Turkey, Israel;
   • the Member States of the Commonwealth of Independent States, Ukraine, Georgia, Asia, the Middle East;
   • North America, South America, Africa, Australia, New Zealand, taking into account the boundaries of the states that can not be intersected on the inside.

The Promo-LEX Association believes that the first four indicators mentioned in the law are decisive for the distribution of constituencies within the geographical areas established by the Parliament. We reiterate that the geographical areas are distributed as follows:

• Europe[8]: Member States of the European Union, Norway, Iceland, Switzerland, Liechtenstein, San Marino, the countries of South-East Europe that are not members of the European Union, Turkey, Israel;
• CIS and Asia: the Member States of the Commonwealth of Independent States, Ukraine, Georgia, Asia, the Middle East;
• America and other territories: North America, South America, Africa, Australia, New Zealand.

Given the four criteria provided for by the Electoral Code, similarly to the analysis proposed by ’Gente Moldava‘ Association[9], Promo-LEX Association has performed a series of mathematical calculations to obtain percentage weights for the number of constituencies that should be created abroad in each of the three geographical areas established by law. Thus, the following tables indicate the corresponding calculations for each indicator taken apart:

Table 3

The above table shows that, based on the information held by the Moldovan diplomatic missions and Consular Offices in the countries of residence, the number of voters in the CIS and Asia geographical areas exceeds twice the number of voters in the European countries, and the America geographical area and other territories reach about 6% of the total number. Therefore, according to Promo-LEX estimates, out of the 6 constituencies to be created, 1.80 constituencies should be created in Europe, 3.85 – in CIS and Asia, 0.35 – in America and other territories.

Table 4

On the basis of the information held by central public authorities, including relevant official statistical data, Promo-LEX finds that 1.32 constituencies should be created in Europe, 3.71 single-member constituencies in CIS and Asia, and 0.97 constituencies in America and other territories.

Table 5

Taking the result of the prior registration for the 2016 Presidential Election of the citizens staying abroad as a basis for calculation, the table above shows that the number of voters in Europe exceeds 2.75 times the number of voters in the other geographical areas taken together. Therefore, 4.71 single-member constituencies are to be created in this area, 0.91 single-member constituencies – in America and other territories, and 0.38 single-member constituencies in CIS area and Asia.

Table 6

Similar calculations performed on the basis of the number of voters abroad, who participated in the 2016 Presidential Election show that 4.97 single-member constituencies should be created in Europe, 0.57 single-member constituencies – in CIS and Asia, and 0.46 single-member constituencies in America and other territories.

Finally, the number of single-member constituencies to be created in each of the three geographical areas represents the sum of the number of constituencies resulting from the calculations for each of the four criteria, divided by the number of criteria (four). The table below presents the final aggregate results of this analysis:

Table 7

Thus, bearing in mind the facts mentioned above, the number of single-member constituencies and their distribution must be a representative, proportional and universal outcome, to ensure fair conditions for every voter. Given that the Parliament has not set weights, the vote of each voter must have the same power both in the country and abroad.

In order to ensure this, all the possible criteria, including those established by the legal framework, have been taken into account. Thus, there has been determined an optimal way of distribution[11] and a fair number of constituencies to be created for Moldovan citizens living abroad, according to the geographical areas established by the Parliament.

In conclusion, Promo-LEX Association points out the necessity to create 6 constituencies abroad, and recommends their following distribution by geographical areas:

• the Member States of the European Union, Norway, Iceland, Switzerland, Liechtenstein, San Marino, the countries of South-East Europe, which are not members of the European Union, Turkey, Israel – 3 constituencies;
• the Member States of the Commonwealth of Independent States, Ukraine, Georgia, Asia, the Middle East – 2 constituencies;
• North America, South America, Africa, Australia, New Zealand – 1 constituency.

[1] Calculations done on the basis of the information gathered from various open sources. Should the methodology be accepted, they ought to be reviewed on the basis of the official information submitted and confirmed by the relevant authorities
[2]   http://socialistii.md/igor-dodon-cere-deschiderea-a-159-sectii-de-votare-in-rusia/
[3]   http://cec.md/index.php?pag=news&id=1991&rid=19965&l=ro
[4]   http://cec.md/index.php?pag=news&id=1042&rid=20576&l=ro
[5]   http://www.registru.md/date-statistice/in-profil-administrativ-teritorial
[6]   http://www.cec.md/index.php?pag=news&id=1042&rid=20576&l=ro
[7]   If this methodology is used, it is recommended that the weight of about 12% be added to the figures of 55,000-60,000, which represent the number of voters needed to create a single-member constituency in the country, because it is according to this weight that the constituencies will be opened outside the country, where the voters who are de facto included in the voter lists will vote.
[8]     The generic names of geographic areas are generalizing and are used in the study to facilitate the presentation of the information.
[9]     https://drive.google.com/file/d/0B_QM79BYEMjnRHdEbldxYU5aWjA/view
[10]   The information held by SIRC Registru as of 01.07.2017, http://www.registru.md/date-statistice/referitor-la-cetatenii-rm-plecati-peste-hotare-la-loc-permanent-de-trai
[11] If this calculation methodology is used, it is also recommended to use it inside the geographical areas to establish fairly the number of constituencies (countries) in each geographical area.

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