LEGAL SYSTEM IN THE DIGITAL AGE
WEEK 2
Democracy (from Greek “government of the people”) is a form of government in which power
resides in the people, who exercise it through different political means and institutions.
Among them we can first mention the typical instruments of direct democracy, through which citizens
may take decisions that affect them at first hand.
In addition to these we also have instruments of indirect democracy, by means of which citizens, who
are the holders of the decision-making power, may elect their political representatives who act as
intermediaries performing the decision-making and the administrative functions on behalf of the
people that they just represent.
In such systems of indirect democracy (also known as representative democracy), therefore, it is not
the people who directly takes decisions, but this function is entrusted to the political representatives
who are subjects delegated by the people itself for this specific purpose.
As a result, in this case we assist to the creation of lots of intermediate bodies, such as the Parliament,
the Government and the Municipal and Regional Councils, which are periodically elected by the
citizens with the aim of taking complex decisions according to the majority principle.
In Italy, the Parliament is in charge of exercising the legislative power. According to art. 70 of the
Constitution, this function is jointly performed by the two Chambers which are the representative
body of Italian citizens: the Chamber of Deputies and the Senate of the Republic.
The two Houses together form a perfect bicameral system, meaning that they perform identical
functions, but they do it separately. In the Italian legal system, only the Chamber of Deputies and the
Senate, among the bodies that exercise constitutional functions, are composed by direct designation
of their components by the electoral body.
The election, as a democratic way of selecting the Members of Parliament, gives them the quality of
representatives.
The work within the Parliament is governed by special regulations drawn up by each House and
adopted with an absolute majority of the votes of its members.
The sittings of both Chambers are public.
The joint session of the Parliament (Parlamento in seduta comune) is a collegial body in its own right
whose members are the deputies and senators together, integrated by the delegates of the regions in
the number of three delegates per each region and only one for the region of Valle d’Aosta.
It does exercise functions strictly indicated and provided within the Constitution such as:
-
Election and oath of the President of the Republic
-
Impeachment of this latter
-
Election of 1/3 of the components of the CSM (Supreme Council of Judiciary)
-
Election of 5 constitutional judges
The Chambers are elected by citizens who enjoy the right of active electorate. The voters of the
Chambers are citizens over 18 years old (until 2018 for the Senate only citizens who have passed the
25th year of age).
Any citizen is eligible to be elected:
- in the Chamber of Deputies, if they have reached the 25th year of age
- in the Senate, if they have reached the age of 40
Main characteristics of the vote
•
It is personal, meaning that it must be exercised personally unless the voter is physically
impeded
•
It is equal, as each vote has the same value as all the others
•
It is free, meaning that not only the electoral law but the whole system must prevent the voter
from being pressured or coerced in favor of a party or a candidate
•
It is secret, in order to ensure the aforementioned freedom
•
It is considered as a civic duty, but this actually does not mean that its practice is mandatory
Status of the Members of the Italian Parliament
By parliamentary status we mean the overall position in which deputies and senators are by reason of
their membership of the elective Chambers.
•
Members of the Parliament are thus exempt from any civil, criminal, administrative and
disciplinary liability that may arise from an opinion or a vote given by reason of their mandate.
This provision is aimed at allowing them the widest freedom of assessment and decision in
the exercise of their own mandate.
•
No member of Parliament, without authorization of the Chamber to which it belongs, can be:
1. Subjected to personal or home restrictions
2. Arrested or otherwise deprived of his personal liberty or held in detention
3. Subjected to wiretap
The Members of the Parliament, as representatives of the whole Nation and not of their voters, cannot
receive from this latter any binding provision or order regarding the way in which their mandate has
to be carried out. As we said, according to art. 67 of the Constitution, each member of Parliament
represents the Nation and not his voters.
Within the notion of political representation two distinct meanings can be identified:
-
Direct
relationship
between
representatives
and
represented:
in this sense there is a precise link between the two subjects based on an explicit and binding
mandate. We could also talk about representation of interests that is typical of medieval
-
parliaments and in which the representative is required to act in the interest of the represented
person with whom he runs a relationship based on an imperative mandate.
The
representation
is
a
situation
of
independent
power:
in this sense there is no direct relationship between representatives and represented. This is a
notion of liberal origin based on the so-called prohibition of imperative mandate which first
appeared within the French Constitution of 1791. This prohibition is still nowadays expressed
by article 67 of the Italian Constitution.
According to art. 70 of the Italian Constitution, the legislative function is jointly exercised by the two
Houses of Parliament.
In order to turn a proposal into a new law, an identical text must be approved by both the Chamber
of
Deputies
and
the
Senate
of
the
Republic.
The proposal may be presented to one of the two Chambers of Parliament by:
the
Government
each
single
Member
of
the
Parliament
People
(collecting
at
least
50,000
signatures)
Regional
Councils
- CNEL (National Council for Economy and Labor)
Main steps regarding the lawmaking process
1. Presentation of a new bill (proposal)
2. Approval by the House before which it is first presented
3. Transmission of the bill so approved to the other House for a second vote and approval of
the same text in its entirety, amendments included
I.
This procedure may determine a possible «shuttle» from one House to the other of a
text
which
has
been
amended
several
times.
This shuttle process (also called navette) lasts until the same text is approved by both
the Chamber of Deputies and the Senate of the Republic.
4. Promulgation of the law so approved by the President of the Republic (who also has the
power to refer back bills to Parliament for their reconsideration and for a second approval)
5. Publication within the Official Journal (Gazzetta Ufficiale) and entering into force 15 days
after its publication (so called vocatio legis period)
“By law” we must mean a law in the formal sense approved by the Parliament according to the
ordinary procedure, while by “act having the value of law” we mean a decree law (approved by the
Government in exceptional cases of necessity and urgency and converted within 60 days by the
Parliament) or a legislative decree (adopted by the Government upon a parliamentary delegation).
Direct democracy is a form of democratic government in which citizens can, without any
intermediation or political representation, directly exercise the legislative power.
This modern form of direct democracy was devised during the French Revolution, being first
presented in the French Constitution of 1793.
It was later adopted, in various forms, in several countries of the world including numerous US States
and many European countries.
The tools through which citizens can exercise direct democracy are the following:
•
Petition,
is
the
simplest
instrument
of
direct
democracy.
A petition requires the body to which it is addressed to give a simple answer to a specific
question arising from the electoral body;
•
Abrogative referendum (or referendum to repeal), through which citizens can repeal a
legislative
measure
voted
and
approved
by
the
national
Parliament.
The repeal takes place by calling the citizens to vote and it is always preceded by a collection
of signatures.
• Confirmatory referendum, through which citizens can be called to vote and confirm, even
without a prior collection of signatures, the prior approval of some specific types of laws, for
example laws that directly concern the legislator, such as electoral laws, or those that involve
particularly high expenditures for the State.
•
Popular initiative law, with which the proponents, by collecting the necessary number of
signatures, can call the elected representatives to discuss and vote for a new law proposal.
This instrument of direct democracy is sometimes also called People's Proposal or People's
Initiative Motion.
•
Legislative referendum, with which the proponents of the popular initiative law directly call
all voters to vote for the introduction of a new law within the legal system;
•
Revocation of elected representatives, which allows citizens, following the specific
procedures, to revoke an elected representative, or even the entire representative body, before
the expiry of his mandate.
Direct democracy finds a specific provision and constitutional protection within the Constitution
of the Italian Republic and in particular within art. 3 of the Constitution which is included in the
section “Fundamental Rights”.
Among the tools that the Italian legal system provides for the effective exercise of this form of
participation we have:
• Abrogative referendum (article 75)
Law n. 352 of 25th May 1970 requires the presentation of 500,000 authenticated signatures, which
must be collected within a maximum period of three months by the electoral body. This clearly makes
such an undertaking difficult for groups that do not have an adequate organization. The norm reserves
the referendum initiative to citizens (500,000 voters) or to the Regions (5 Regional Councils) who
can propose to the electorate “the total or partial repeal of a law or an act having the value of law”.
Furthermore, repeal is possible only if the quorum of 50% of those entitled to vote is exceeded. The
quorum indicates the minimum number of electors who must take part to the vote for the referendum
to be valid and suitable for repealing the provision that is the subject of the question: it is fixed in the
majority of those entitled to vote. As we said, Article 75 also establishes that a majority of validly
cast votes must be reached. The effects provided for the abrogative referendum (or better the effects
deriving from the presidential decree which declares the total or partial abrogation of the law subject
to the popular consultation) allow us to classify this direct democracy tool among the acts having the
force of law.
Parliament will be bound by the abrogative outcome of the referendum, that is to say that it will be
unable to apply the repealed law and to regulate the matter in the same way as it used to do before
the popular consultation.
•
Confirmatory Referendum (article 138)
In
Italy,
it
is
also
called
“constitutional
referendum”
(art. 138 Cost.).
It takes place if an amendment to the Constitution has been approved by each of the two Chamber of
the Parliament with a majority of less than two thirds of its members.
In this case a referendum must be requested within three months by one fifth of the Members of a
Chamber or five hundred thousand voters, or even by five regional councils.
The constitutional referendum does not require a quorum of voters to be approved.
•
Popular initiative law (article 71)
According to art. 71 of the Italian Constitution, it allows for the submission of bills to Parliament,
provided
that
they
are
supported
by
at
least
50,000
signatures.
The discussion of the proposal and the resolution remain competence of the legislative body.
It is therefore only a “popular proposal” or “popular initiative motion”, which does not necessarily
end with the introduction of a new law within the national legal system.
•
Petition (article 50)
According to art. 50 “all citizens can send a petition to the Chambers to ask for legislative measures
or
in
order
to
express
common
needs”.
Anyway, this instrument has not found practical application yet, having never been regulated by a
specific national law so far.
The European Union also recently (on 1st of April 2012) introduced an instrument of direct
democracy:
the
European
Citizens'
Initiative
Right
(ECI).
With the collection of one million signatures in at least 5 member Countries, European citizens can
call
the
European
Commission
to
present
a
legislative
proposal.
It
is
therefore
a
popular
initiative
law
with
a
parliamentary
vote.
Although the “Motion” or “Popular Proposal” (as this instrument is also called) is not the most
powerful instrument of direct democracy, nor it is particularly original, it is by the way truly important
as it represents the first instrument of direct democracy at the level of a continent.
The birth of democracy is generally framed within the experience of the poleis of the Ancient Greece
where Athenian citizens, in the agorà, used to discuss and directly vote on issues regarding their city.
In this way they were able to personally manage their own interests, without any mediation of political
representatives or other subjects.
This is what we just called direct democracy.
However, the evolution of society, the complexity of interests and social needs, and the plurality of
subjects concretely called to decide, over time made it difficult to practice such forms of direct
democracy and, therefore, it became preferable the introduction and the use of some institutes of
representative democracy which are likely to be more suited to the needs of our modern societies.
But it is also true that in the current era of digitalization and technological development, direct
democracy still seems to be recoverable and somehow adaptable to present necessities.
In this regard we are assisting in fact to the fast developing and to the wide spread of new forms of
direct democracy which, by means of the Internet and through other online blogs and platforms, allow
users to directly express their opinions and their contribution to the formation of decisions that
directly affect them.
This is what, broadly speaking, may be called e-democracy.
Any who, it must also be said that some mixed systems have also been developed over time.
This has mainly happened with the aim of trying to reconcile the differences which insist between
direct and indirect democracy systems, ultimately finding a balance among these opposite tools of
expression of the political power.
The Italian legal system may be considered as a clear instance of this.
The Italian Constitution, in fact, envisages representative democracy as main form of government of
the Country, but this is tempered by the presence of some institutions of direct democracy whose aim
is that of guaranteeing the participation and the direct contribution of citizens to the country's political
decisions.
In particular, the Constitution introduces three institutions of direct democracy within our system:
- the right to petition, provided by art. 50, according to which “all citizens can address petitions to the
Houses to request legislative measures or to expose common needs”;
- popular initiative laws, as per art. 71 co. 2, according to which “the people exercises the legislative
initiative through the proposal, by at least fifty thousand voters, of a draft bill divided into articles”;
- the referendum, which can be abrogative (art. 75), confirmatory (art. 138), or also consultative (art.
132).
The advent of technology however, and as already mentioned, seems to open the door to new forms
of direct democracy and an overcoming, at least partially, of its main limits, allowing meetings,
albeit virtual, of all the stakeholders and giving them the chance to actively participate in the decisionmaking process (the so-called virtual Parliaments).
The term e-democracy, or digital democracy, therefore refers to this use of digital and technological
tools designed to increase the political participation of citizens with the ultimate aim of bringing
politics as close as possible to their interests and needs.
PROS AN CONS OF OTHER DIRECT DEMOCRACY TOOLS IN THE DIGITAL AGE
Since one of the most topical issue we are facing today regards the decline of the representative
democracy, we are facing with the so called “digital democracy”, an example of which is given by
the choice, given by the electoral body on online platforms, of candidates who will run in the next
administrative or parliamentary electoral competitions.
Moreover, such a purpose may also find its own foundation within the Italian Constitution that, as
per art. 118 co. 4, provides for the principle of subsidiarity, according to which decisions must be
taken by the level of government that is closer to those people to which it relates.
So, we talk about e-democracy, or democracy 2.0, in relation to any type of use of telematic and
digital technologies (above all the Internet) which is offered to the people to provide their
participation in the decision-making process in any field and at any level of government (local,
national or supranational).
It must be said indeed that while in the past the application of “pure” direct democracy was hindered
by the size of the States, today the discourse has been reopened thanks to the fast development of new
telematic technologies.
This is particularly due to the spread of computers and thanks to the advent of the Internet, which
allowed the possibility of managing a large number of “virtual Parliaments” over time (a phenomenon
also known as e-democracy).
Such kind of new direct democracy is professed today by various movements all over the world
(Podemos in Spain, Syriza in Greece or the 5 Stars Movement in Italy).
But the defenders of representative democracy argue the substantial ineffectiveness of this method as
well as the risks or dangers that may arise from direct e-democracies, among which the raise of
populism plays a decisive role.
Within the concept of digital democracy two models can be then distinguished:
1) direct digital democracy, which consists of a model of democracy in which citizens simply
participate in the legislative process instead of their political representatives.
In this case, therefore, citizens could directly decide on the issues that have to be submitted to the
legislative approval by giving their general consent or dissent to the presentation of the proposals via
a digital platform.
2) participatory digital democracy, which consists of a model of democracy that does not focus on
reducing the role of political representatives, but rather on increasing the participation of all citizens
in the identification and in the development of the main political guidelines.
Through this system, therefore, the members of the community are called to make their own
contribution to the development of politics through new proposals suggested first hand by them, or
also by directly participating in the shaping of bills and statues, again through the use of an IT
platform that is virtually capable of putting in contact a plurality of people even very distant from
each other.
So the questions that we should ask ourselves at this regard is: can digital democracy really replace and not only integrate - representative democracy
At first sight, this fast and growing development of direct democracy through the use of digital
technology therefore seems to offer an innovative solution in order to bring politics closer to the needs
of the community and to enable an active and conscious participation of citizens within the political
life.
Technology thus plays a major role in shaping our political landscape.
Perhaps the most obvious way that technology impacts politics is as a tool for political actors such as
politicians, governments and other organizations to better identify, engage with and rally members of
the public to their cause, as well as to broadcast their political messages.
As a matter of principle, two of the most powerful methods for using technology as a political tool
include today data collection and the use of digital media.
Data collection has always been indeed a key aspect of political propaganda and information
campaigns meant to broadcast political ideas.
But, the rise of digital platforms, especially social media, has also given to private citizens the tools
to affect political change on a level like never before.
For example, many experts largely credit the takedown of political strongmen all over the Middle
East during the Arab Spring of 2011 to the power of social media and chat apps, such as WhatsApp,
that empowered citizens to quickly organize and broadcast their message around the world.
However, it is also appropriate to point out the risks that could arise from an uncontrolled increase
of the use of these tools, especially if this latter is not supported by its regulation, above all from a
legal point of view, which may provide in turn for its proper use while also preventing from
hypothetical abuses.
In fact, the same advancements in technology that allow us to work and play in ways like never before
also allow nefarious actors to cause disruption or harm as they have never done so far.
While some hackers spend countless hours trying to access personal or financial information, many
others are indeed specifically dedicated to disrupt the political world.
For example, the hacktivist organization Anonymous is notoriously dedicated to expose sensitive
political and governmental information to the benefit of the public.
Along similar lines, but with a more mission-focused bent, we may also talk about the advent of
online “fake news”, a term coined during the 2016 U.S. presidential campaign.
Fake news consists of written news which are usually published with the intent to mislead, in order
to damage an entity or a person, or even just to gain people’s financial or political trust.
We may note in particular the impact that online fake news, and more in general democracy 2.0, is
having on the institutions and tools of representative democracy that we currently use, corroding them
from inside and questioning the effectiveness and the utility of the political mediation as synthesis of
interests and as the very essence of our politics.
The crisis of representative democracy and political representation, from a political perspective, is
indeed one of the main consequences which derives from the widespread use of technologies and
digital platforms, and it gains particular importance within our democratic-parliamentary models
affecting, as mentioned, the very scope of the constitutional-representative principle which they
inspire.
Moreover, this model already lives a state of crisis due to a growing feeling of distrust that people
have of political parties and their action, regardless on the other side the substantial impact that digital
revolution is producing on our society.
The departure from politics, the breakup of the traditional political parties, the difficulty in finding an
electoral law that may grant political and governmental stability, along with the increasing growth in
abstention and the emergence of “electronic democracy”, have thus all together led to the birth,
particularly during the last two decades, of populist political movements and new instances which
seem to be particularly sensitive to a model of participatory-deliberative democracy.
The decline of representative democracy and the digital democracy
•
As we said, when we talk about representative democracy we usually refer to a system in
which the people have the power to assume, through representatives, public decisions,
such as a system of delegation that selects the representatives of the citizens through the
elections.
•
Such a narrow definition in terms of electoral democracy offered arguments to demonstrate
the insufficient suitability of such a model to respond to participatory demands, as it seems to
reduce the exercise of citizens' sovereignty to the sole manifestation of a vote with the effect
to have a formal democracy, a sort of democratic oligarchy emptied of the substantive content
that should be given to it, with particular reference to the real political participation of people
and protection of their fundamental rights and liberties.
•
The universal suffrage converted then the parties into mass organizations, imposing them
to communicate with the civil society and, therefore, with the voters too.
•
Historical events and the advent of new digital technologies have thus led to a weakening
of this role of the intermediate social formations and they have also strengthened the
relationship between public opinion and leaders.
•
As a result, institutional participation - especially the electoral one - has been reduced and
has been replaced by other forms of participation.
•
New media, the Internet, the social networks like Facebook and Twitter, and other blogs and
canals, have stolen the control and management of communication, including politics, to
traditional centers of power, favoring new forms of participation and, in any case, innovating
the traditional ones.
•
Potentially, these new media and the technology of the Net are able to radically change the
current instruments of the representative democracy, opening, at least theoretically, the way
to forms of direct deliberative democracy: what, in the Internet “language”, should
constitute Democracy 2.0.
•
It is undoubted, in fact, that the Network is progressively becoming the fastest and most
continuous means of consultation, information and contact between citizens and
therefore, at least broadly speaking, of greater participation in democratic life.
•
Today, a quarter of the world's population is online and more than a billion of citizens have a
Facebook
profile.
Given the crisis of the parties and the vacuum of politics, it should not be surprising that
the Internet offers greater possibilities for social life and for connecting people.
•
Positive experiences of digital democracy, although limited, have long been present in the
Western
world.
As a matter of example we can think about the Consensus conferences, the New England
Town meetings, the public Assemblies that govern 85% of the Swiss municipal authorities,
the civic juries of Berlin, the public consultation opened in 2007 by the New Zealand
government on the reform of the police force, or the initiatives of electronic legislatures
promoted by the Finnish government in 2013.
But moving back to the question if digital democracy can really replace representative democracy we
may say that the Internet, while formally increasing the channels of participation, may also have the
undesirable effect of enlarging rather than reducing the defects of “public democracy”.
The use of the Internet for the purpose of political propaganda by individual organized movements
could multiply personalization rather than discourage it, giving visibility to figures endowed with
particular capacities of attraction and personal communication.
Furthermore, the internet does not always favor public discussion and mediation that should
take
place
instead
in
civil
society
or
in
Parliament.
As a result, the creation of groups on the web reduces the possibility of encounter between opposing
sides and, therefore, it widens the fracture between communities.
In addition, electronic democracy by its nature does not favor, indeed tends to hinder, those
deliberative processes and the effective interaction between the political parties that are the
essence and, at the same time, the reason for any modern parliamentary democracy. The advent of
digital direct democracy, instead of the representative one, would thus necessarily impose the
abolition of one of the conerstones of our constitutional system: the prohibition of the binding
mandate provided for by art. 67 of the Constitution with reference to the general political
representation:
Apparently an ideal system, because it accurately identifies the will of the elected representative with
that of the represented elector;
However, we need to stress the main function of parliamentary democracy which is, above all,
mediation and the search for compromise between opposite political forces.
Some difficulties also arise regarding the possibility to revoke the elected representatives (so called
recall)
It exists in the United States, Canada, Switzerland, Japan and many Latin American countries and it
allows citizens to assert the political responsibility of the elected by making them fall from office
during
their
term
of
office
following
a
rigorous
procedure.
By the way, some critical aspects still remain regarding this instrument too.
The fact that digital democracy today is not completely able to replace representative democracy
derives, moreover, from the following two further circumstances:
•
digital divide, that is to say the technological gap between the different generations
and among the different economic and social contexts, which do not allow the
Network to extend with due uniformity and generality.
•
the manifestations of will conveyed through cyberspace and by means of the Internet
can be very easily manipulated, without these being remedied by targeted and
promptly applicable legislative and administrative measures.
In the light of the above we can now list both the good and bad aspects deriving from the use of the
Internet and other technologies for political purposes.
GOOD
The Internet may be seen as an essential instrument of greater participation that partially fills the gap
produced by the crisis of the parties and helps them to gain a new role;
It is also an indispensable vehicle to inform and to be informed and a further means of controlling
voters
on
elected
officials.
Finally, it also grants a multiplication of the capacity for initiative of citizens, a function that give
substance to the so called "controdemocracy" aimed to supervise, to prevent and to judge the
political work.
•
Examples of the use of the Internet in this sense are the following:
•
- In Morocco, in the spring of 2011 was created an IT platform joined by 150,000 citizens, so
as to force the constitutional review Committee to take into account their opinion.
•
- In Iceland, between April 6th and July 29th 2011, 25 citizens were instructed by the National
Parliament to draw up a draft Constitution and these citizens have done so through social
media, opening a page on Facebook, in which anyone put in circulation proposals and
comments on the proposals of others.
•
- WikiLeaks phenomenon: according to some sources of information, the revelations of this
organization would have even helped to fuel the Tunisian riots.
BAD
•
The Network does not have its own legal discipline and it is not surrounded by any
constitutional
guarantee.
Therefore, if it remains in the hands of an aristocracy of the web, an elite able to manage it
without public control it might be able to determine the behavior of others and undermine
the security of proceedings and voting.
•
It will depend ultimately on us, Governments and international authorities with influence and
regulatory power, and on the use that it will be made of digital democracy, how such pros and
cons of the Net will affect the representative system in the early future.
We have seen in particular how, in its strongest form, digital democracy has been possible in the
constitutional systems of countries such as Switzerland, both at the federal and local level, or else in
the United States, especially at the local level in this case.
In the European Union, on the other hand, Estonia holds a record in this field, having been the first
country in the world to allow the electronic vote since 2005.
Estonian citizens can therefore vote via the Internet for both elections and referendums.
Germany is also one of the leading nations in e-democracy, mainly because the political world of
that country immediately saw the possibility, through this tool, of interacting and retaining the
electorate, but this is also due to a non-delegative democratic cultural trend which is typical of
countries with a strong Calvinist culture.
The most known experience regarding this matter in Germany is that of the German Pirate Party.
But another ambitious project is the one that is taking place in Iceland, where, through an online
platform, political parties have been trying to rewrite the national Constitution thanks to the
contribution of all citizens.
In Italy, instead, in 2004 the Ministry for Innovation and Technologies co-financed limited projects
for the development of digital citizenship and to promote citizens’ direct political participation at
local level.
Most of these experiences, however, resulted in the dissemination of institutional websites with only
few forums for public discussion.
Meanwhile, together with “institutional” initiatives, even “private” projects have begun to emerge
with always the same aim of creating software platforms for the development of direct and
participatory democracy.
In this sense there is no lack of examples even in the Southern Europe.
Broadly speaking, this is actually further evidence of how technologies have affected, by modifying
it, the concept of representative democracy with the aim of promoting a greater personal participation
of citizens in politics and within the decision-making process.
All of this has thus permitted the creation and the raise of parties that make of e-democracy their
political flag.
We can think for instance about Podemos movement founded in Spain in 2005, or Syriza party which
born in Greece, or, as far as it closely concerns us, the Italian 5 Stars Movement.
A major topic which arises talking about the consequences produced by the widespread use of the
Internet and digital platforms within the politics regards, indeed, the link between such digital tools
and the current success of far wings parties as well as populist ones.
Hence, the question we should ask ourselves at this regard is the following: can the diffusion of
broadband internet explain the recent success of populist parties in Europe?
Populists cultivate an anti-élite communication style which, they claim, directly connects them with
ordinary people.
The internet therefore appears to be the perfect tool for populist leaders.
Their electoral impact has never been as powerful as in the latest round of national elections across
Europe, that also coincided with the Brexit referendum and the election of Donald Trump as U.S.
President.
In an attempt to explain this increasing success, scholars have pointed to factors such as economic
insecurity and crisis, anti-immigration sentiments, a general cultural backlash and the decline of
traditional parties’ representative function.
But a key role has been also played by the increasing impact of online communication tools which
has been made possible just by the proliferation of broadband internet and digital technologies.
Broadly speaking we can argue that one of the reasons why populist politicians and parties are
increasingly successful is that broadband internet has provided them with new tools that perfectly suit
their communication needs.
The anti-establishment rhetoric of populists finds indeed a perfect ally in broadband internet as a
medium that connects political leaders directly to their supporters.
What is more, populists often struggle to get their messages across on the mainstream media,
especially when these rely on unverified content and when they are socially provocative.
Online communication actually solves this problem, giving populists unfiltered access to their
audience in this way.
This advantage is somewhat unique to populists, as mainstream parties and politicians faced fewer
restrictions in the first place.
All these anti-élite parties are based on online systems and platforms where citizens (actually only
members) are allowed to express their preferences regarding the candidates to be appointed for the
next elections, or regarding the content of bills and laws to be submitted to the parliamentary
discussion.
In order to claim greater closeness between representatives and represented, these movements have
also pushed for a full review of the concept of the political mandate.
The political mandate is an institution regulated by article 67 of the Italian Constitution which
constitutes a corollary of article 1 that attributes sovereignty to the people “who exercises it in the
forms and within the limits set out by the Constitution”.
Therefore, it may be considered as a perfect expression of the concept of national sovereignty.
So not by chance, one of the limits referred to in the first article of our Constitution is the prohibition
of a binding political mandate.
This means that, once elected, the single parliamentarian does not represent the voters and does not
act as their agent, being free to make the choices that he considers necessary during his whole
parliamentary mandate, without being either influenced by the guidelines taken by the political party
to which he belongs.
This principle enters into crisis due to a greater affirmation of the aforementioned instruments of
direct democracy advocated by such “anti-political” movements, determining consequences that are,
on closer examination, not even compliant with our constitutional system.
The populist movements, starting from a (questionable) idea of the people as a “virtuous and pure
entity”, therefore claim as their scope the overcoming of parliamentary democracy, in the place of
which an identification between rulers and governed is imagined.
Referring to the theory developed by Rousseau, they outline a representation linked to popular
sovereignty as well as to the need for an imperative mandate in which the member of the Parliament
is the representative of the people and can only act in the people’s interest trying to reach its specific
purposes.
But there are also other elements that characterize the populisms of the last decade.
Among these a first and fundamental one, that is also well connected to the concept of binding
mandate, is the anti-élite position which is aimed at delegitimizing all intermediate social formations
(from parties to trade unions), riding the wave of the “war” against the “strong powers” and against
lobbies such as, for example, economic entities (banks) or even the press.
The phase of the twentieth-century parties seems thus to have come to an end and, as the old rules
regarding communication between institutions and citizens are no longer valid, we are now facing a
sort of “counter-democracy” which is seen as a new political form in which the people have the
possibility to control power and to directly defend themselves against it.
However, the main problem that arises with this regard, and on which we intend to dwell now, is that
of the forms and means which direct democracy, as promoted by these populist movements, uses
today to establish itself and to take the place of the old representative democracy.
Talking about that, we will also focus on the cons deriving from this political use of technology and
digital devices.
Regarding to the first topic, a leading role must be surely attributed to that “social agorà” which is
represented by the Internet (or the Net), supported today by the growing use of new means of
communication (social media above all) and digital technologies that are at our continuous disposal.
With respect instead to the critical aspects related to this “digital agorà” that must be point out, it is
worthy to conduct a gradual investigation.
First of all, the approach of the so-called e-democracy is far from being what it claims to be that is to
say, a space for a debate open to all.
This relies on the observation that access to online dialogue is actually not allowed to the entire
community, considering that there is a slice of the population (in Italy we are talking about the 37%)
marked by a non-regular use of the Internet.
Not everyone would, therefore, be in a position to participate in any online political debate and this
may rise an important participation deficit, not guaranteeing substantial equality among citizens as
established within our Constitution.
But another interesting aspect of e-democracy concerns the scope and the content of the public
debate itself, emptied of its original function (the presentation of theses and the quest for synthesis)
and “raised” regarding its tones, but “lowered” regarding its contents.
This mainly derives from the fact that there are no laws or regulations or even filters on the Net
which are capable of guaranteeing elements such as the truthfulness of the information, justice and
the protection of the weakest.
This therefore shows another highly critical element that characterizes the online debate and that
finally comes up talking about digital democracy.
On the Net there is no public or political power capable of protecting the common good and instead
of an agorà, as it is supposed to be, it seems more likely to be an indefinite place in which a myriad
of communicating solitudes meet and virtually interact with each other.
Blogs, more than a space for sharing constructive proposals became therefore a space intended for
the limitless expression of complaints and discontent that fuel citizens' discontent with institutions,
driving them away from politics and ultimately compromising the same noble and original function
to which e-democracy is (according to populist movements too) supposed to stick.
It is thus a matter of fact that digital democracy presents some critical points, both in terms of
application difficulties and in terms of risks for the protection of citizens' rights and for the
maintenance of our institutional political structure as defined within the Constitution.
In addition, the outcomes and results achieved through this form of democracy must also be analysed
in order to capture any profiles of merit or, conversely, of inefficiency of the entire system.
Entrusting complex political decisions to citizens, who may not have the adequate skills to understand
and manage political interests and the complexity of social needs, could in fact lead to the adoption
of measures that are not only inefficient, but even harmful to the citizens themselves.
This is what indeed normally happens when decisions are supported by those who do not have the
means to understand their deep meaning or also to predict the political and social consequences
deriving from them.
One of the most concrete and current risks regarding online democracy is, however, that of the
possible vulnerability of the information systems that it uses and on which e-democracy is
generally based.
Opinions expressed via the Internet indeed are not protected from any risk such as the manipulation
of votes, as well as the violation of the right to secrecy regarding this latter, with a consequent and
evident danger for the veracity of the results thus obtained.
A situation of this kind was recently the subject of a provision of the Garante della Privacy in Italy
(decision n. 83 of 4th of April 2019), which found indeed a lack of security measures applied to the IT
system of a direct democracy platform which could, in its opinion, seriously jeopardize the
confidentiality of the votes cast by users.
E-democracy therefore seems to clearly require something more than a simple possibility for citizens
of voting online through digital platforms.
To be part of the democratic life it is indeed essential to participate in a real debate, to confront each
other and to share ideas in order to reach a final decision that is actually the result of a real
“deliberative process”.
The current political participation of citizens through the Internet is instead distorted, altered not only
by the improper use of the network but also by a “video-shaped politics” that leads citizens to choose
the candidate, or the political party, not on the basis of programs or ideas, but rather basing this choice
on a “common feeling” and on a public opinion which is often manipulated by television and
computer propaganda.
In this sense the use of IT tools, primarily the Internet, therefore requires regulation at the legislative
level, so that the advantages deriving from the advent of technologies and from the current digital
revolution can be preserved but, on the other hand, it would also be possible to reduce the risks that
derive from the publication of fake or unfounded news, or, and more generally, those that derive from
a free and uncontrolled access to the Internet.
In this regard it must be said that, even though national legal systems are making important efforts in
the direction of regulating the phenomenon, these still seem to be obsolete and unsuitable to grant the
goodness and the efficiency of digital technologies’ use.
Thus, our national legal systems are not able to protect computer users from the damage that its
uncontrolled expansion nowadays could produce.
Moreover, the inadequacy we are talking about can be clearly noticed both at the level of ordinary
law and, above all, at the constitutional level, considering that no provision of this rank expressly
governs the use of digital tools.
Obviously, this is partially due to the time in which national constitutions have been adopted, which,
in this sense, can now only determine their obsolescence.
The efforts we made so far through the production of a large number of declarations and through the
adoption of some regulatory interventions both at international and European level are certainly
remarkable.
In this respect we may also recall the recent intervention of the President of the European
Commission Ursula Von Der Leyen, dated 28 October 2020, in which the right of access to the
Internet was fully recognized, and for the first time, as a fundamental human right, meaning that it
ensures people’s freedom of thought and expression as well as their freedom of action.
Although such recognition has been long awaiting, and even if it confirms the importance that
technologies, the Internet above all the others, have now acquired within our societies, this is not
enough, however, to grant the protection of European citizens from the risks that derive from a free
and an unregulated use of digital tools.
Therefore, we still need to hope for future interventions that can achieve effective protection of the
rights connected to the use of the Internet and which may truly protect the people from any abuses of
technologies and from the compression of their other rights, constitutionally guaranteed, which may
ultimately derive from them.
Aside this danger, another concern also arises from the scenario of a non-regulation of the Network.
We refer to the negative effects which may impact on the stability of our institutional structure and,
as we saw, on those principles that govern our community life with the aim of regulating the
democratic participation of people in the exercise of political power.
Given all that, and in order to face the current crisis of representative political systems, along with
targeted regulatory interventions which may prevent the spread of fake news and that consequential
climate of distrust towards institutions, greater attention should also be given to the “training” of
individuals.
From this point of view it would therefore be more and more urgent to introduce and enhance learning
paths in schools and faculties aimed at promoting a “digital education”, considering that the return
of phenomena such as nationalism and populism, or also the simple lack of interest of people
regarding the “public thing”, is a direct consequence of the lack of knowledge regarding the functions
and the institutional organization of our State, as well as a result of a generalized lack of people’s
civic education.
By applying some appropriate corrective measures in order to avoid, or at least to reduce the main
risks described above, electronic democracy, therefore, could even offer an innovative solution as an
attempt to bring politics closer to the needs of the community and for an active participation of
citizens to the community life.
At the present time, however, we still seem to be far from pursuing this aim, while the crisis that our
representative democracy keeps experiencing today is clearly visible to everybody.
In hindsight, technology and politics have actually always been connected, dating as far back as the
Industrial Revolution which led to some of the most seminal issues in the American history, such as
the labour and workers protection.
But in recent years they have become even more inseparable.
As a result, representative democracy is currently experiencing a crisis, real or perceived, for which
citizens blame the political class for the inability or inadequacy to face the great economic and social
problems that have produced the impoverishment not only of the weaker classes but, above all, of the
middle ones.
But as we said it does not seem that online democracy, at least in its current conception, can provide
an answer to these problems.
We still and just rely on technical-scientific progress without regulating it and without discussing it.
Important issues such as artificial intelligence, network regulation or biotechnologies are not touched
by the political debate but ignored and left at the mercy of their technical progress, and with them
also the social evolution as a whole.
To conclude, it must be said that, as long as a satisfactory regulation of cyberspace will not be
introduced on a transnational, transgenerational and non-ideological basis, it is unlikely that the
Internet will be able to constitute a secure space of freedom and, therefore, a valid instrument of direct
democracy reinforcing the representative one.
And this is true despite the good will to make appropriate regulations that has been shown by
numerous States, international organizations and the EU itself, and despite the fact that there is a
constant increase of acts of self-discipline and self-education.
For now, unfortunately, “algocracy” seems to prevail, undermining representative democracy and
forcing us to move between fake news and private justice exercised by large platforms, between
Trojans and increasingly mediatic processes, between online politics and discrimination.
Cyberspace is therefore left to itself and, by doing so, it will be difficult for it to keep the promises of
freedom and greater participation of citizens in public life that it is supposed to realize.
A. THE CONSTITUTIONAL COURT
It is the highest Court of Italy regarding matters of constitutional law and it guarantees and «closes»
the whole legal system.
It is composed by 15 judges (5 appointed by the President of the Republic, 5 elected by the joint
session of the Italian Parliament and 5 elected by the ordinary and administrative Supreme Courts of
Italy) whose may be elected among lawyers with 20+ years of experience, law professors or (former)
judges of the Supreme Courts
The Court shall pass judgement on:
a. Controversies or legal issues regarding the constitutional legitimacy of laws issued
by
the
State
and
by
Regions
When the Court declares a law unconstitutional, this latter ceases to produce its own
effects starting from the day after the publication of the ruling
b. Conflicts arising from allocation and distribution of powers between the
constitutional bodies of the State, between the State and the Regions, and between
Regions among themselves
c. Charges brought against the President of the Republic for impeachment
d. The eligibility of the referendum to repeal
Typical acts that can be issued by the Constitutional Court are the following:
a) JUDGMENTS of inadmissibility or merit (sentenze di inammissibilità o di merito);
b) ORDERS, when the matter has not been definitively decided or is not decided within the merit.
The Constitutional Court decides on the constitutional legitimacy of laws.
Different models of constitutional control over the law
Models of constitutional control over the law can be divided as follow:
•
Constitutional justice system, aimed to constantly monitor the compliance of the laws with
the
national
Constitution
“Born” in 1803 in the USA (law case Marbury vs Madison)
•
Centralized/Widespread (typical of the USA)
•
Indirectly/Direct (as in use in Spain)
•
Concrete/Abstract (common in Austria)
•
Ex post/ex ante (typical of France)
The model of the Italian constitutional justice
The constitutional control over the law in Italy is:
•
Centralized, do to the presence of the Court which is an ad hoc body in charge of repealing
the unconstitutional laws; but the Italian constitutional system also has elements of diffusivity,
considering the power that the ordinary judge also has to raise the question of constitutional
legitimacy of the law that he is assumed to apply to solve his case.
•
Indirect, as it is usually and mainly mediated by the judge in charge of solving the case; only
the State and the Regions have a direct access to the Court, which is never recognize instead
to citizens.
•
It is both Concrete (as in the incidental judgment the matter must always be relevant) and
Abstract as in the main way judgment it does not need any particular relevance.
•
Ex post, as it regards laws already enacted by the Parliament; it also presents some elements
of preventive control given by the one that is performed by the President of the Republic
before the promulgation of laws (anyway it must be said that the power of P. of the R. to send
back laws to Parliament is not binding, so this excludes that this may be considered as a real
and incisive preventive control of constitutional legitimacy over the law).
Functions of the Constitutional Court
1° FUNCTION
The Constitutional Court decides on the constitutional
This statement may be issued at the end of two different judgements:
legitimacy
of
laws.
• Incidental judgment (giudizio incidentale) proposed before the Court by the ordinary judge
(giudice a quo). The proposal of a judgement of constitutional legitimacy by the judge a quo regarding
the law that he is supposed to apply in order to solve the present case determines instead the following
consequences:
-
The trial is suspended
The order of suspension has to be published
The duration of the suspension lasts until the constitutional judgement is pending before the
Constitutional Court
• Main way judgment (giudizio in via principale) for all issues proposed before the Court by the
State against the Regions and vice versa and regarding the laws enacted by such entities:
•
It is a judgment of constitutionality given in a direct way by the Court
•
It can be requested by the State or by one (or more) Region as the sole two bodies which have
a direct access to the Court; citizens instead are deprived of it
•
The proceeding must be proposed within 60 days from the publication of the national or
regional law
•
The State can challenge a regional law using any parameter, while Regions can only use rules
contained within the Title V of the Constitution (articles 114-132)
•
It ends with a judgment issued by the Court
Essential requirements for the judgement of constitutional legitimacy of laws are the
following:
•
A trial (criminal, civil or administrative)
•
A judge (impartial subject) a quo in charge of applying the law which is constitutionally
dubious
•
An order for referral or remittance to the Constitutional Court made by the judge a quo
•
Judgment/order
issued
by
the
Constitutional
Court
The reference order instead needs 4 elements:
•
Object: the rule that is assumed to violate the Constitution or the constitutional law
•
Parameter: indication of the articles of the Constitution which are supposed to be violated
by the law
•
Relevance: the contested provision must be essential in order to solve the case brought before
the judge a quo
•
It does not show groundlessness: just a little doubt regarding the constitutional legitimacy
of the law is considered satisfactory per se.
Closure of the proceedings before the Court
•
Both the indirect and direct judgments end with the issue of a ruling (of inadmissibility or
regarding
the
merit)
or
with
the
issue
of
ordinances.
Therefore, rulings enacted by the Court may be the following:
• Inadmissibility
• Of merit: through its decisions of merit the Court directly states on the merits or on the
groundlessness of the question of constitutionality which has been brought before it
Judgments of merit of the Court can be in turn classified as follow:
• ACCEPTANCE (with erga omnes and ex tunc effect)
- Total/Partial
- Differed
The Court accepts the question raised by the court a quo or by the State or the Region
Within the decision of the Constitutional Court it is written “the question of constitutionality is
founded“
The law is declared illegitimate: it is thus repealed by means of the ruling (constitutive ruling)
The sentence is then published within the Official and it may be considered as a “source of law”
The repeal is retroactive: all pending cases can not be resolved with that norm declared as
unconstitutional
Effects in time of acceptance judgments:
•
Pending or open relationships are closed
•
The retroactivity of the sentence extends its effects even to the previous pending/open legal
relationships,
but
not
to
previous
depleted/closed
ones
Depleted/closed legal relationships are those that can no longer be exercised, as the expiring
or the limitation period has matured, or else the sentence has already become final
Way to close a legal relationship are therefore the following:
•
Final
Judgment
No further appeal - after a certain time (60 days or 6 months) - is proposed, or else the case is
decided
in
Cassazione
or
in
the
last
degree
of
judgment.
The only final judgments which may be overwhelmed by the annulment are those of criminal
conviction which lose effectiveness after a sentence of acceptance of the favor libertatis
principle.
The civil and administrative judgments and all the other judgments instead do not lose
effectiveness for reasons of economy.
•
Expiration of legal term
•
Waiver
•
Debt fulfillment
REJECTION SENTENCES
• The Court rejects the question raised by the national court or by the State or the Region
• It is written within the ruling that “the question of constitutionality is not founded”
• The judge of that trial is hence obliged to apply that rule
• The same judge or others are allowed to raise up the same question in other judgements (it is said
indeed that the rejection sentence is not a constitutional judgment, meaning that the ruling it produces
effects only within the case for which the question of constitutionality has been previously proposed)
•
The judgments of rejection are pronounced within the limits and in the terms in which the
question is posed to the Constitutional Court and do not therefore integrate a sort of “license”
of constitutional legitimacy
•
Hence, the question can always be re-proposed by other judges or by the same judge in other
judgments
•
The Court may issue a declaration of inadmissibility if, after a rejection decision, sufficient
time has not elapsed in order to change the social conscience or the opinion of the Court
•
The time may be shorter if the national court has new arguments and parameters so significant
that they may likely lead to a rethinking by the Court
• INTERPRETATION
- Of rejection (with only inter partes effect)
- Of acceptance (with erga omnes and ex tunc effect)
• MANIPOLATIVE (with erga omnes and ex tunc effect)
- Additive
- Substitute
These are decisions by which the Court decides on the rules, that is to say on the interpretations
obtainable from the written text, leaving intact the written text itself and so its legal provisions.
These are ways of saving parliamentary will by avoiding the trauma of annulling the law, and are
aimed at making it compliant with the Constitution.
We have two types of interpretative sentences:
Rejection: the Court does not share the judge's interpretation and provides its own interpretation.
• They can be recognized from the decision whose formula is: “the question is not founded in the
sense in which in motivation”.
They are binding only for the referring court: they have so inter partes effects, meaning that other
judges might continue to interpret the norm in a different way from the one established or indicated
by the Court.
Acceptance
• Elaborated by the Court following the poor follow-up that their rejection interpretive rulings have
met.
The Court calls off the interpretation of the norm which is legally non-compliant with the
Constitution.
• Recognizable from the decision as it is written that “the question is founded in the sense in which
in motivation”.
No judge in Italy will be able to give that interpretation of that provision anymore (so called erga
omnes effects of the interpretative
MANIPULATIVE SENTENCES
The Court has introduced them so as not to overwhelm the whole provision: by manipulating it, it
becomes indeed constitutionally compliant.
Additive: the Court adds parts to the arrangement.
They can be recognized from the written: “the law is illegitimate in the part where it does not provide
for ...”
Substitutive: the Court manipulates the provision by removing the unconstitutional part and
replacing it with the constitutionally legitimate one.
2° FUNCTION
The Constitutional Courts also judges on attribution conflicts (conflitti di attribuzione)
We have 2 different types of attribution conflicts:
1) Among different powers of the central State
2)
Between
the
State
and
the
Regions
Such kind of conflict of jurisdiction concerns regulations or acts enacted by the State or the
Region within matters of their own competence
They can be considered as a power of the central State the following:
•
The President of the Republic
•
The Parliament (also sub-organs, ex. Committees of inquiry, but only if they have
constitutionally assigned functions)
•
The Government (including individual Ministers for ius ad officium)
•
Judges (any judge is indeed a state power)
•
The Committee promoting the referendum proposed by the electoral body
•
Examples of conflicts of attribution may be the following:
•
• The President of the Republic refuses to promulgate a law after the second approval
by the Parliament
• The State enacts a new law regarding matters that are reserved by the Constitution to the
competence of the Regions
•
•
The judge refuses to pass a file with evidence to the Commission of inquiry
The Parliament changes the law while a referendum request is in progress to avoid the
referendum itself: the organizing Committee raises the conflict to carry out the same
referendum on the new law
•
The Parliament distrusts a single Minister
•
The Government obtains the motion of no confidence but refuses to resign
•
In general, conflicts can arise for: VINDICATIO POTESTATIS (claiming a power that
is also claimed by another organ) or for an OMISSIVE BEHAVIOR OF ANOTHER
ORGAN
•
The Constitutional Court resolves the conflict with a sentence in which it establishes the
person responsible for that function and annuls the acts that violate it or, if there was an
omission, it imposes the mandatory behaviour to the competent organ
•
3° FUNCTION
•
The Constitutional Court is also in charge of judging the President of the Republic
accused of impeachment by the Parliament.
•
4° FUNCTION
•
The Constitutional Court finally states on the eligibility of the referendum to repeal.
At this regard the Constitutional Court has also established implicit limitations
regarding the formulation of the referendum question that, among the other
requirements, must be clear and homogeneous.
OTHER COSTITUTIONAL BODIES
Beside the Parliament and the Costitutional Court, we have other costitutional bodies whose
structure, functions and powers are described within the Constitution.
Among these we can remember the following:
-
The President of the Republic
-
The Goverment
-
The Juduciary power
-
According to part of the Italian legal doctrine, this category includes all necessary and
indefectible organs of the State, provided for by the Constitution, and whose
fundamental functions and organization are directly governed by this latter.
They are in a position of mutual parity and they take part in the so-called political function,
meaning that they directly pursue all aims and objectives provided by the State and indicated
within the Constitution.
Since these organs are directly governed by the Constitution, any modification to them shall be
considered as a constitutional amendment and it requires, therefore, the approval of a specifical
law which provides for particular majorities and which also needs to follow complex
procedures.
Thus their very existence constitutes a limitation to the revision power of the Constitution.
The definition of constitutional bodies may rely on the notion of State-order, as they can be
described as the top management of a sector that is constitutionally separated from the activity
of the Government.
The notion of public administration instead refers to the notion of State-administration and thus
identifies the totality of the state and local organs that form the executive power and have their
own top in the Government.
According to this meaning, the constitutional bodies are entities in a position of substantial
autonomy and therefore separation with respect to the state administrations, also with regard
to their management activities and their internal organization (the so called autodichia).
Therefore, the exclusion of their discipline from that one dictated by the law regarding public
employment specifically derives from the need to preserve such autonomy they do have.
As a result, their lack of inclusion in the category of public administrations also determines the
non-application to the Italian constitutional bodies of the general discipline and controls that
are typically addressed to state administrations, such as the norms regarding the tax
jurisdiction.
With the ruling n. 129 of 1981 the Constitutional Court indeed decided that “exceptions to the
accounting jurisdiction” operate naturally “with respect to the bodies immediately
participating in the sovereign power of the State and, therefore, located at the top of the legal
system, in a position of absolute independence and mutual equality”.
Hence, jurisdiction over the accounts must be balanced with the autonomy of the constitutional
bodies, so as to reconcile these controls with the principle of the division of powers.
The Judiciary Power
The judiciary power is divided as follows into three tiers:
1. Inferior courts of original and general jurisdiction
2. Intermediate appellate courts which hear cases on appeal from lower courts
3. Courts of last resort which hear appeals from lower appellate courts and whose proceedings
is about the interpreatation of law
Note: Judges are public officials and, since they exercise one of the sovereign powers of the
State, only Italian citizens are eligible for judgeship.
INSTITUTIONS OF CONSTITUTIONAL IMPORTANCE
Institutions of constitutional importance are instead the following
•
National Council for Economics and Labour (CNEL)
•
Council of State (Consiglio di Stato)
•
Court of Audit (Corte dei Conti)
•
High Council of the Judiciary (Consiglio Superiore della Magistratura)
•
High Council of Defence (Consiglio Supremo di Difesa)
Unlike the constitutional institutions, the institutions of constitutional importance do not take part in
the so-called “political process”; they do not directly determine the goals the State will pursue, but
they
give
nonetheless
their
contribution
in
order
to
reach
them.
The institutions of constitutional importance contribute to the maintenance of the democratic order
and for this reason are also called “auxiliary institutions” (organi ausiliari).
Although these institutions are mentioned in the Constitution, it is left to the ordinary law to define
their organization, their structure and their powers.
Unlike the constitutional bodies they can be removed from the legal system, although this requires a
constitutional reform.
THE PRESIDENT OF THE REPUBLIC
The President of the Republic is regulated by artcles from 83 to 91 of the Italian Constitution.
The main characteristic of his office are the following:
•
He is the Head of State of Italy
•
He represents national unity
•
He guarantees that Italian politics complies with the Constitution
•
The term of office lasts for 7 years
•
He is qualified as a “neutral power” organ, that is to say as an organ that does not enter into
the political game and that is placed above the parties without playing any active role in the
determination and implementation of the political function
•
He is elected by the Parliament in a joint session, supplemented by three delegates for each
Region
and
only
one
for
Valle
d'Aosta.
The election takes place by secret ballot and by a two-thirds majority of the Assembly; when
the majority couldn’t have been reached in the third ballot, an absolute majority is considered
as sufficient for the election
Among his functions instead we remind the following:
•
He holds elections of the parliamentary Chambers and establishes their first meeting (art. 87)
•
He can send messages to the Chambers of the Parliament
•
Before promulgating a law, he may request a new resolution with a motivated message to
the Chambers
•
He can appoint five senators for life
•
He can dissolve the Chambers (art. 88)
•
He promulgates laws and he may issue decrees having the force of law along with regulations
•
He holds abrogative referendum and the constitutional referendum
•
He appoints the President of the Council of Ministers and, on the proposal of these, the
Ministers (art. 92)
•
He ratifies international treaties
•
He chairs the Supreme Council of Judiciary
•
He grants grace and commits penalties
THE
EXECUTIVE
POWER
•
With the administrative function the State apparatus performs an effective and concrete
activity aimed at achieving its immediate goals
•
This latter can be defined as administrative activity
•
This complex and multi-faceted activity is carried out by the Government and by the organs
dependent on it
•
The executive power consists of a group of bodies (central and peripheral) at the top of which
the Government is placed as a constitutional body
THE GOVERNMENT
The Government of the Republic consists of the President of the Council and the Ministers, which
together constitute the Council of Ministers.
The Italian Government is a “government made of ministries”, meaning that the apparatus of the State
is divided into “organically constituted central apparatuses of the sector”.
These ministries are headed by a constitutional body, which is the Minister.
The Council of Ministers is the principal holder of the executive power in the Italian system.
The executive power can then be described as the power to put a decision of the Italian political
process into effect (or also to execute it).
As the main organ of the executive power, the Council of Ministers' primary role is the actualisation
of national political decisions.
The Constitution provides it with the following means in order to reach such goal:
-
The legislative initiative
-
The decree power
-
The regulatory power
The Government, together with the bodies of the PA it is dependent on, also performs the
administrative function.
This is an effective and concrete activity aimed at achieving its immediate purposes like:
•
Taking care of the international relations
•
Defending the territory
•
Protecting the public order
•
Protecting health
•
Granting cultural elevation of citizens
•
Assuring economic development
The Government, as an expression of a certain majority, is the body to which it is entrusted the activity
of political leadership and which is responsible for determining collegially the general policy of the
State and the general direction of the PA.
At this regard, the Legislative Decree 80/1998 defines the “principle of separation between
political and administrative management, the scope of the political-administrative function of the
governing bodies, the main contents of it and the corresponding scope of the responsibilities of the
executives in charge of the management”.
The political bodies have jurisdiction over the definition of the general lines of strategic addresses
of
the
system.
This is achieved by identifying the objectives to be achieved based on their priority and by taking
into account the constraints imposed by the financial law.
Broadly speaking, judges and courts may play a different role considering the different legal frame
of reference.
At this regard we usually divide legal systems into two categories:
•
Civil law systems, where decisions of courts does not take part within the sources of law
•
Common law systems, where judicial precedents instead are able to create new law
In practice, nowadays this difference is not so evident considering that:
•
Decisions of Supreme Courts (as Corte di Cassazione in Italy) sometimes they do play a
decisive role in the evolutions regarding the application and the interpretation of law
•
Scholars influence (legal literature) also plays a major role in this respect
Technology today also has an incontrovertibly central role in contemporary judicial work and life.
Along with tremendous benefits, it imports substantial new challenges that increasingly impact
upon courts, litigants and witnesses.
Anyway, internet-based dispute resolution systems (online Courts) are becoming more and more
common and Governments all around the world are trying out new solutions to streamline their legal
systems introducing elements of digitalization.
As a confirmation of this we can also provide some instances of online courts and trials.
•
British Colombia in Canada launched the nation’s first-ever online civil tribunal aimed at
allowing citizens to resolve small-value property and land disputes: initially voluntary, it will
soon
be
mandatory.
For cases involving sums of less than $25.000 the benefit is that applicants can now avoid a
pricey trip to the Supreme Court where legal costs could easily end up higher than the sums
in dispute.
•
Trial
regarding
the
bombing
suspect
Zacarias
Moussaoui
With the aim of promoting general transparency, and responding to public interest in that trial
regarding the terroristic attack of 9/11 to the World Trade Center, the United States District
Court for the Eastern District of Virginia decided to “broadcast” the proceedings on the
Internet.
Testimony, evidence, and related material were thus for the first time made available online
to the general public in the interest of a public trial.
Pros regarding the digitilization of Courts and trials
As Professor Richard Susskind said, «the days of fetching up in front of a judge with bulging casefiles are beginning to change»
This quote is based on the following remarks:
•
The present judicial system is significantly costly for users
•
It is usually too time consuming
•
Disputes also take a long time to be resolved
•
The current system is out of step in the internet society and does not really take into account
the digital developments
•
Trials rely on piles of paperwork that sometimes are hard to reference and which are often
even harder for the parties to access
Therefore the digital revolution we are currently assisting to may determine remarkable advantages
towards a modernization and streamlining of the judicial and procedural system.
Cons regarding the digitalization of Courts and trials
Some risky issues also arise from the advent of the Internet and its utilization within hearings and
legal proceedings.
Among them we can underline the following:
- Inherent risks when asking people to rely on an electronic-delivered judicial service at what is
likely to be one of the most stressful points of their life
-
Huge costs to implement digital courts programmes
-
The UK ministry of justice has indeed assigned 1 billion pounds to modernize the courts and
expand the types of hearings that can be conducted via computer
-
Negative attitude of the old legal law profession
There is in theory an audience of incalculable numbers of people with indiscriminate access to the
hearings (see the Zacarias Moussaoui trial in the USA)
Individuals thus gain access to sensitive and personal information—oftentimes anonymously—in an
unprecedented way and, what is more, they can subsequently engage in intimidating or even
threatening behaviors facilitated by the said anonymity