Unpacking Moldova’s Language Amendment: Constitutional, Procedural, and Political Dimensions

In March 2023, the Parliament of Moldova passed a law that replaced the phrase “Moldovan language” with “Romanian language” in all laws of the country, including the Constitution. As the amendment to the Constitution did not follow the usual procedural requirements, it led to harsh criticism and fueled anti-government political protests. The Government argues that the enactment of this ‘technical law’ is not a constitutional amendment, but merely implements a prior decision of the Constitutional Court. Nevertheless, the ‘language law’ illustrates the intersection and interplay of law and symbolism in Moldova, triggering debates, protests, and an anticipatory wait for the Constitutional Court’s opinion on the matter – writes Zoltán Pozsár-Szentmiklósy

Background

On 16 March 2023, the Parliament of Moldova passed a law that replaced the phrase “Moldovan language” with “Romanian language” in all laws of the country, including the Constitution, thus implementing a 2013 ruling from the Constitutional Court and in line with the Pro-European Government’s interest in differentiating the country from its post-Soviet past.

The Republic of Moldova is a multi-ethnic country: the majority of the population speaks Romanian (according to the previous terminology, Moldovan), while a significant minority speak Russian, Ukrainian, and the Gagauz language (a Turkic language). The Romanian language spoken in Romania and in the Republic of Moldova are linguistically identical from the point of view of vocabulary and grammar. As such, the Moldovan language can be considered as a dialect of Romanian. The territory of the Republic of Moldova was part of the historical Romanian principality of Moldova (forming a unit with the western bank of the Prut River). Consequently, Moldova’s historical and cultural heritage is very similar to that of Romania.

After World War II, Moldova became part of the Soviet Union. In this period, the Cyrillic alphabet was used for the Moldovan language, derived from the standard Russian alphabet. It was replaced by the Latin alphabet in 1989 (except in the separatist region of Transnistria). It is no surprise that the Romanian Ministry of Foreign Affairs welcomed the ‘language law’ in Moldova, viewing it as a symbolic representation of the strong cooperation between the two countries within the framework of European integration. In contrast, political movements under Russian influence opposed the ‘language law’, thus highlighting how the amendment is a symbolically profound departure from the Soviet past of the country and lingering Russian political influence.

The role of the Constitutional Court

The period of modern statehood of the Republic of Moldova officially began with the adoption of the Declaration of Independence by Moldova’s Parliament on 27 August 1991, proclaiming the country’s independence from the Soviet Union. The country’s new constitution was adopted on 28 July 1994.  According to the interpretation of the Constitutional Court, the two documents together form the ‘block of constitutionality’, which is the ultimate source of power and law in the country. The Constitutional Court of Moldova is a Kelsenian-type court with a significant set of powers stipulated in the Law on the Constitutional Court. It exercises norm control and acts as the final authority in disputes related to the exercise of competencies of other state organs, as well as legal disputes related to elections and referenda. As a result, the Constitutional Court is often involved in political conflicts.

The Constitutional Court declared that the Declaration of Independence represents the political and legal basis of the Republic of Moldova and "the primary legal and political basis” for the Constitution itself.

An interpretation of the Constitutional Court was the basis for the language amendment to the Constitution, elaborated in Judgment no. 36. of 2013. The case originated from a request to clarify the simultaneous interpretation of the state language provisions of the Constitution and the Declaration of Independence. While the Declaration of Independence mentions the Romanian language, Article 13 of the Constitution designates that the state language is Moldovan (based on the Latin alphabet). The Court declared that the Declaration of Independence represents the political and legal basis of the Republic of Moldova as a sovereign, independent, and democratic state, finding that it carries the value of a “constitutional text”, and that it “constitutes the primary legal and political basis” for the Constitution itself. Moreover, it functions as an eternity clause, as an “original, intangible and immutable element of the block of constitutionality”. Regarding the conflict between these two documents related to the question of language, the Court expressed that “the key element of the process of national emancipation was the struggle for the Romanian language and Latin alphabet”. Due to the distinctive role of the Declaration of Independence within the block of constitutionality, the Court concluded that the provision contained in the Declaration of Independence on the Romanian language as the state language prevails over the provision regarding the Moldovan language in the Constitution.

Technical implementation or constitutional amendment?

Almost ten years later, on 16 March 2023, Parliament passed Law nr. 52 with 58 votes out of 101. Then, on 24 March the law was promulgated by the President (the head of state) in the Official Gazette. The title of the law, ‘On the implementation of certain decisions of the Constitutional Court’, refers to the fact that it was elaborated to conform various legal acts with the interpretation of the Constitutional Court. This organic law is technical in the sense that it contains a general provision that modifies the terms “Moldovan language”, “state language”, “official language”, and “mother language” to “Romanian language” in all normative acts adopted by the Parliament (including the Constitution). The only explicit reference to the Constitution prescribes – as a consequence of the amendment – the “desuetude” (lack of legal force through non-use) of the constitutional provision which states that the Moldovan language is based on the Latin alphabet, as the Romanian language is already based on the Latin alphabet. The pivotal issue related to the ‘language law’ is whether its effect of amending the text of the Constitution is in accordance with the constitutional requirements for amendments.

The Constitution prescribes substantive, procedural, temporal, and emergency constraints on constitutional amendments under Articles 142 and 143. Similar to eternity clauses of other constitutions, the Constitution contains a general prohibition on amendments that infringe fundamental rights and their safeguards. In the case of amendments that affect the sovereignty, independence, and unity of the state, as well as its ‘permanent neutrality’, a special amendment procedure is outlined, namely a national referendum passed by a majority of registered voters. As a temporal limit, proposals for constitutional amendments may be passed no earlier than six months after their initiation and no later than one year after initiation. Furthermore, the Constitution prohibits revisions under a state of national emergency, martial law, or war. Taking into consideration the above constraints, the regular procedure for constitutional amendment can be initiated by 200,000 voters, one-third of the members of Parliament, or the Government. An advisory opinion of the Constitutional Court on the draft amendment is necessary for the submission of the proposal to the Parliament, after which it can be passed by a two-thirds majority of members of Parliament.

Procedural challenge to the ‘language law’

The day following the passage of the ‘language law’, three opposition members of Parliament turned to the Constitutional Court, raising substantial procedural issues. They argued that the ‘language law’ did not conform with constitutional requirements for a variety of reasons,  including that it was not a distinct law but a general legal act, that there was no referendum even though the amendment affects ‘language identity’, that the Constitutional Court did not express its preliminary opinion related to the amendment, that the amendment was enacted during a state of emergency, that the time constraints related to parliamentary debate were not respected, and that there was an insufficient proportion of supporting votes for a constitutional amendment (58 instead of 67).

If the Parliament amends the Constitution in a general legal act, not in a separate proposal, it goes against the requirement of transparency stressed by the Venice Commission.

Some of these questions are relevant in technical terms. If the Parliament amends the Constitution in a general legal act, not in a separate proposal, it goes against the requirement of transparency stressed by the Venice Commission. In the case the amendment is proposed in a distinct legal act, the related substantive and procedural requirements must also be met, which were clearly not taken into consideration in the present case. The status of this legal act as an organic law and its effects on other elements of the legal system are unequivocal. Nevertheless, its effect on the modification of the Constitution’s text might be questionable. Nonetheless, one may argue that the amendment did not introduce a new provision to the Constitution as the above-mentioned interpretation of the Constitutional Court already had such an effect, and a generally binding one, since 2013.

The interpretation of the Court effectively functioned as an informal constitutional amendment, expressing new content of the Constitution by way of constitutional interpretation that was accepted by the relevant political actors in the past decade. The ‘language law’ can be considered an explicit acceptance of this informal constitutional amendment with one particularity: its effect on the Constitution was also informal as it did not follow the regular, formal amending procedure. One might add that the provision on the “desuetude” of the formula “based on Latin alphabet” was meaningless as an informal constitutional amendment by desuetude took place already.

Conclusion

Given the significance of Judgment no. 36. of 2013 in interpreting the ‘block of constitutionality’ alongside the specific questions related to state language, it seems improbable that the Constitutional Court would declare the language law unconstitutional. Nevertheless,  political tensions related to the official language will likely continue. The Government, aligning with pro-European sentiments, has a strong interest in differentiating the country from its post-Soviet past and continuing Russian influence, even in symbolic terms. Language stands as a potent emblem in this regard. Conversely, pro-Russian political movements are against such changes. Of particular concern is Russian influence, especially against the backdrop of the ongoing war against neighbouring Ukraine and the frozen Transnistrian conflict. It is important to note in this regard that, based on a motion of the Government, in June 2023 the Constitutional Court declared that the functioning of the most influential pro-Russian party (‘Șor’ party) is unconstitutional.

Zoltán Pozsár-Szentmiklósy is an associate professor of Constitutional Law at the ELTE Eötvös Loránd University (Budapest, Hungary)

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Suggested citation: Zoltán Pozsár-Szentmiklósy, ‘Unpacking Moldova’s Language Amendment: Constitutional, Procedural, and Political Dimensions', ConstitutionNet, International IDEA, 31 August 2023, https://constitutionnet.org/news/unpacking-moldovas-language-amendment-constitutional-procedural-and-political-dimensions

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