Private and Public law
lesson 9
The legislative power;
the President of the Republic
The President of the Republic
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The President of the Republic
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He/she is elected by both Chambers of the
Parliament jointly
<> France
analogous to Switzerland, USA and Germany
The President of the Republic
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Eligibility requirements:
- Italian citizen
- age: 50 years old at least
- entitled to civil and political rights
The President of the Republic
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Term: 7 years
why?
Independence from the political majority views
(Parliamentary term: 5 years)
The President may be re-elected
The President of the Republic
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Early termination:
- [elapse of the 7 year-term]
- death or voluntary resignation
- loss or forfeiture of any requirement to take
office / hold the charge (e.g., loss of the Italian
citizenship)
- he/she becomes permanently unable to perform
his/her duties
The President of the Republic
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Is the charge held by the President compatible with
any other public charge?
- Mayor?
- Member of the Parliament?
- Member of the Government?
The President of the Republic
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May/should the President be replaced?
- on a temporary basis (art. 86 of the Italian
Constitution): are missions abroad also included in the
definition of “temporary inability” to hold the charge?
- on a permanent basis
* Is the President of Senate entitled to carry out any act?
Is the power to replace the President absolute?
The President of the Republic
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- temporary inability
President of the Senate
- permanent inability
President of the Senate
+ elections must be
convened to appoint a
new President
The President of the Republic
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The only precedent regarding permanent inability:
1- the General Secretariat of the President sent a notice to the Prime
Minister and the Presidents of the Chambers, regarding the
President health conditions
2- the Prime Minister and the Presidents of the Chambers declared
that the President of the Senate should hold the charge as President
(art. 86)
3- the President health conditions turned out to be worse than
expected: the Parliament was convened to acknowledge the
“permanent inability” of the President
4 – the President voluntarily resigned
The President of the Republic
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Is the President politically/legally responsible?
- political liability
- legal liability
The President of the Republic
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political liability
- he/she is not politically liable. Liabilities are
incurred by the competent Minister and by the
Prime Minister
- Each Presidential Decree must be signed by the
competent Minister
- Art. 279 of the Criminal Code was repealed in
2006
The President of the Republic
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Legal liability
with regard to the acts done by the President while
performing his/her duties, the President is not legally
liable (even from a criminal law viewpoint, unless for
“high treason” or “attempt to attack the Constitution”).
As a private individual, the President may be held liable,
but he/she may be only prosecuted after the elapse of
his/her term (provided that the applicable statutory
limitations have not elapsed yet)
The President of the Republic
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“high treason” or “attempt to attack the Constitution”:
- they are not contemplated by the Criminal Code. The
principle of non-retroactivity of criminal law does not
apply to the President
- both Chambers of the Parliament must resolve upon
the accusation (absolute majority)
-
the Constitutional Court is entitled to make a judgment
The main powers of the President
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- in connection with the legislative power
he/she declares political elections / referendums open; he/she may
appoint five senators in charge for an unlimited period of time; he/she
may deliver speeches / messages to the Parliament; he/she may
suggest a second-reading of a draft new law
- in connection with the administrative power
he/she appoints the Prime Minister and, upon suggestion of the latter,
each Minister; he/she ratifies international treaties; he/she is formally
head of the Army; he/she settles disputes arising from “extraordinary
petitions”; he/she may revoke Mayors from charge
- in connection with the Courts’ function
he/she appoints five members of the Constitutional Court; he/she is
head of the High Council of Magistrates (CSM); he/she may grant
“pardon”
The President of the Republic
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In particular: the declaration regarding the opening of political
elections
- uncured conflict between the Government and the
Parliament (“mozione di sfiducia”)
- facts or circumstances clearly highlighting that citizens no
longer support the Government / majority activity
The President of the Republic
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In particular: the declaration regarding the opening of political
elections
- The President must hear the opinion of the President of
each Chamber of the Parliament, even though this is no
binding opinion
- The President may not declare the opening of elections
within the last 6 months of his/her term
The Parliament
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The Parliament
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Each member of the Parliament “represents the Nation” (art. 67 of
the Constitution): does this imply any “power to represent” electors?
What does “representative” mean?
This is something different from the figure regulated by Art. 1387 of
the Civil Code (“rappresentanza”):
electors are not entitled to revoke the “representative”
the relationship is set up only between electors and
representatives, there is no “third party”
members of the Parliament are not bound by any mandate (art.
67)
Members of the Parliament only represent a “theoretical” entity
(the Nation), not their electors
The Parliament: the electoral systems
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“maggioritario”: the seats allocated the relevant district are
“granted” to the candidate acquiring majority of votes
(absolute / qualified majority)
“proporzionale”: each candidate is granted with a number of
seats proportionate to the number of votes cast in his/her favor
The Parliament: the main differences between
the two Chambers
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- different age requirements apply to elect and to be elected
- the number of members is different
- the applicable electoral systems are different
- all members of the House of Representatives are elected, while
some members of the Senate are appointed by the President of
the Republic or are automatically declared as members of the
Senate (e.g., former Presidents of the Republic)
The Parliament:
the recent Constitutional reform
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Complaints about the identity of functions of the Chambers
(unless merely procedural aspects are considered)
Proposals regarding reduction of the number of seats /
abolishment of the Senate / its transformation into a
“Regional Senate” / “Senate based on territorial autonomies”
But is “Regional Senate” something really new in the
Constitution?
The Parliament:
the recent Constitutional reform
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Article 57 of the Constitution:
“The Senate is elected on a regional basis.
The number of Senators to be elected is three hundred and
fifteen […].
No region may have fewer than seven senators; Molise shall
have two, Valle d'Aosta one.
The allocation of seats among the regions, in accordance
with the provisions of the preceding Article, is made in
proportion to the population of the regions […]”
The Parliament:
the recent Constitutional reform
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What does the expression “on a regional basis” mean?
There must be a close connection between the Parliament
and Regions (these are not regarded as territorial entities,
separate from the central State, but as local communities of
people)
The Parliament:
the recent Constitutional reform
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The reform envisages:
- reduction of the number of seats
- “transformation” of the Senate into a “Regional Senate” /
“Senate based on territorial autonomies”
- functions of each Chamber have been better specified and
overlapping should be avoided (e.g., a Chamber may legislate, the
other may have supervisory functions); abolishment of “shared”
competences
- streamline Parliamentary regulations: better selection of
proposals and projects of law
The recent Constitutional reform: the Senate will be only
comprised of Mayors and members of Regional Councils; the
current House of Representatives should remain the only
“political” Chamber
Objections: according to the Reform, the House of
Representatives should be governed by an electoral system
granting an extra-quota of seats to the majority
(“maggioritario”); on the other hand, members of the Senate
would not be elected by citizens anymore. Therefore,
minorities might not be adequately represented. Senators
should be elected by citizens (the number may be reduced by
a third); Presidents of Regions may participate to debate
within the Senate with no voting rights; the Senate should
have territory-related competences and general supervisory
functions (and powers regarding relationships with the EU)