—William Partlett, Melbourne Law School
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]
Just a month ago in early June, Moldova—one of the smallest and poorest post-Soviet nations—found itself in a major constitutional crisis. In a space of three days, the Moldovan Constitutional Court blocked the creation of a new coalition government and replaced the sitting president. Weeks later, however, that same Court annulled these decisions and all six judges resigned in response to allegations that it had “compromised its constitutional role” by “acting exclusively” in the interest of the former ruling party.
This crisis suggests that the problems of post-Soviet constitutionalism are not always ones of judicial weakness. In other post-Soviet contexts, constitutional courts are overly political, deployed as weapons by powerful interests intent on keeping power. Underlying these problems of judicial weakness and weaponization are the same problem: A failure of law and judicial institutions to operate independently from ordinary politics.
The Moldovan Constitutional Crisis
In February 2019, Moldova’s parliamentary elections produced a divided outcome. Three parties shared the majority of the seats: the pro-Russian Socialist Party, the pro-European ACUM party, and the ruling Democratic Party. Haggling over a coalition government in the new Parliament proceeded for months until, on 7 June, the Moldovan Constitutional Court ordered new elections. The next day, however, the pro-Russian Socialist Party and pro-European ACUM finally agreed to form a government, electing a new Prime Minister.
This unlikely alliance was forged in response to a common enemy: the ruling Democratic Party, widely regarded as one of the most corrupt political parties in Eastern Europe. Most notably, the Democratic Party is controlled by the oligarch Vlad Plathotnuic, a man known as “The Puppetmaster” for the shadowy power he wields in Moldovan politics. Most egregiously, Plathotnuic is rumored to have been involved in the “theft of the century” which involved the disappearance of $1 billion from three Moldovan banks in 2014.
During its time in power, Plathotnuic and the Democratic Party worked hard to entrench their power. Externally, they hired leading lobbying firms—including the DC-based Podesta group—to market itself to the United States and Europe as a bulwark against Russian influence in Eastern Europe. Internally, they regularly deployed administrative resources to ensure victory. A key part of this strategy was the systematic capture of Moldovan independent institutions, including Moldova’s anti-corruption commission, the Supreme Court, and the Moldovan Constitutional Court.
Facing a loss of its power with the creation of this new socialist-ACUM coalition government, the Democratic Party immediately turned to the Moldovan Constitutional Court. On 8 June, the Court obliged, declaring the new socialist-ACUM coalition government invalid without even holding a hearing. The next morning, the Court removed the President from power and replaced him with a key Democratic Party leader. This new “acting president” called for snap parliamentary elections in September.
The new socialist-ACUM coalition government refused to accept these actions. A group of 80 independent NGOs in Moldova accused the Court of “compromis[ing] its constitutional role” by “acting exclusively” in the interest of the Democratic Party. They pointed to the Court’s decision to interpret the words “three months” in the Moldovan Constitution to mean 90 days rather than its natural meaning of three calendar months. They also questioned the legal basis for removing the existing president from power and declaring a key Democratic Party leader “acting president.” As Moldova teetered on the edge of violence, another unlikely alliance –this time between Russia, the EU, and the United States — finally agreed to pressure the Democratic Party to relinquish power.
This international pressure proved decisive: The Democratic Party gave up power and Vlad Plathonuic fled Moldova for an “undisclosed destination.” The Constitutional Court immediately backed down and annulled its prior decisions. A week and a half later, the entire Constitutional Court resigned. The weaponization of the Court had failed.
Pluralism by default and the strategic pressure theory
How had the Moldovan Constitutional Court become a crude tool of the Democratic Party? The capture of the Moldovan Constitutional Court stems from a wider phenomenon that Lucan Way calls “pluralism by default.” In countries with this kind of politics, political competition is not the result of a commitment to democratic norms or judicial independence but instead is the result of a fragmented—and often highly corrupt—political elite. Incumbents facing defeat will do anything to avoid the loss of power, including placing “strategic pressure” on the courts. Alexei Trochev explains that, in these kinds of regimes, political uncertainty “forces rivals to focus on winning at all costs in the immediate future, because losing a battle now might mean losing the whole war.” This has been clear in other post-Soviet “pluralism by default” regimes. For instance, in both Krygyzstan (in 2007) and Ukraine (in 2010), sitting presidents pressured constitutional courts to annul prior constitutional amendments in order to increase the formal powers of the presidency.
This phenomenon suggests an important qualification to the “insurance theory” of judicial independence. Under this theory, rational politicians who face political uncertainty and who fear electoral loss will create strong and independent judiciaries to protect themselves from the tyranny of election-winners in the future. Courts are therefore a key form of political insurance. But in “pluralism by default” states like Moldova, political competition and uncertainty “has the exact opposite effect on judicial independence that it purportedly has in consolidated democracies: It hinders rather than promotes the maintenance of independent courts.” Indeed, in these kind of regimes, elites do not believe that courts can credibly provide any kind of insurance at all—instead, they are always subject to capture. Thus, incumbents have incentives to capture these institutions before they lose power to increase their chances of staying in power.
This suggests a tentative conclusion. Although political competition and pluralism might be a necessary condition for independent courts and constitutional review, they are not a sufficient condition. Another important condition is a credible belief that courts and constitutional interpretation are actually capable of being autonomous from day-to-day politics.
William Partlett, Why Political Pluralism is not Enough: Moldova’s Constitutional
Crisis, Int’l J. Const. L. Blog, July 10, 2019, at: http://www.iconnectblog.com/2019/07/why-political-pluralism-is-not-enough-moldovas-constitutional-crisis/
 Alexei Trochev, Meddling with Justice, 18 Demokratizatsiya 122, 125 (2010).
 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003).
 Maria Popova, Politicized Justice in Emerging Democracies: A Study of Courts in Russian and Ukraine (2012), 3.