Lecture 17 Flashcards
The President of the Republic: Role
- At the dawn of constitutionalism, the Head of State was the King (source of all constitutional powers, non-elected, lifelong office, non-responsible)
- In the evolution of the parliamentary form of government: gradual loss of power of the Monarchs (executive power transferred to the Government)
- Nowadays: when it comes to the role of the Head of State, there are no radical differences between Republics and “constitutional Monarchies” (e.g.: the UK, Spain, Belgium, etc.)
- In the Italian constitutional system: institutional referendum of 1946 between Monarchy and Republic
- Outcome: (Republic) regarded as binding by the Constituent Assembly (art. 139 Cost.)
- Debate within the Constituent Assembly
1. Rule out direct election: to avoid the danger of personalistic degenerations (historical context)
2. Necessary to establish a “Republican Head of State”
3. The President of the Republic is a new “guarantee power”: they represent the unity of the Nation and protect the Constitution - Different schools of thought on how the role of the President of the Republic should be interpreted in the Italian constitutional system
1. Neutrality
2. “Indirizzo politico costituzionale” (constitutional national policy / constitutional common good) - Neutrality theory: the PotR should be completely neutral in the determination of national policies
1. They are a “referee” that just enforces the “rules of the game” (the Constitution)
2. They can step-in and interfere with national policies only in the event of a manifest violation of the Constitution (severe constitutional danger) - According to the constitutional national policy (“indirizzo politico costituzionale”) theory, the President of the Republic is vested with the power of steering national policies (determined by the Government and by Parliament) to ensure their compatibility with the principles of the Constitution
1. Hyper-political power: power above politics. This does not mean, however, that the President of the Republic can’t exercise their power towards politics
2. The President of the Republic’s actions can have political effects (e.g.: Government formation; promulgation; etc.)
3. However, the President of the Republic’s actions can’t have a political (partisan) aim: their aim must always be to protect the unity of the Nation (the Constitution) - Historically, “Swing model”: the role of the President of the Republic and their powers might change, in the light of the political, institutional and social context (“accordion” powers / “poteri a fisarmonica”) andof a given President’s interpretation of their role (monocratic power)
- At any rate, the President of the Republic always holds a symbolic, unifying role
- Individuals that took the office historically distanced themselves from political (partisan) positions
- Represents the unity of the Republic both from a political and from a territorial perspective
- The PotR represents the Republic (as an institution)in its relations
1. With the Italian people
2. With foreign and supranational institution - Reduced role: usually with a solid Government/Parliament and when the socioeconomic situation is relatively stable
- Larger role: during a crisis (e.g.: Government crisis; formation of the Government; unstable majorities; economic crisis; etc.)
The President of the Republic: Election (+ when he is to be elected: normally, early departure, Houses’ end)
- The President of the Republic is elected by Parliament in Joint Session (art. 83 par. 1 Cost.)
- Parliament in Joint session must be summoned (by the President of the Chamber) 30 days before the natural end of the outgoing President’s term of office (art. 85 par. 2 Cost.) or within 15 days from its early termination (e.g.: resignation, death, permanent incapacity; art. 86 par. 3 Cost.)
- If the Houses are dissolved or there are less than 3 months before their natural dissolution: election of the PotR must be held within 15 days from the first meeting of the new Houses (art. 85 par. 3 Cost.). Prorogatio of outgoing PotR (art. 85 par. 4 Cost.)
- Parliament in Joint session is joined by 58 delegates of the Regions (3 for each Region, 1 for Region Valle d’Aosta) (art. 83 par. 2 Cost.)
- Regional delegates are elected by the respective Regional Councils “so as to ensure that minorities are
represented” - Connection with “national unity” (in its territorial dimension)
- Role of regional delegates has increased from the current legislature (number of MPs cut by 1/3)
The President of the Republic: Election– Requirements
Italian citizenship (not necessarily a “natural born” Italian citizen), at least 50 years of age, full enjoyment of civil and political rights (article 84 Cost.)
The President of the Republic: Election– Incompatibility
Any other public office (e.g.: judge of the Constitutional Court; MP; member of the judiciary; MEP; etc.), but also private CEO, political activity (art. 84 Cost.)
The President of the Republic: Election– Oath of Office
Before Parliament in Joint Session. Allegiance to the Republic and upholding of the Constitution (art. 91 Cost.)
The President of the Republic: Election– Term of Office
7 years from the day of the oath (art. 85 par. 1 Cost.)
- Independence from the Parliament that elected them (5 years natural dissolution)
- Independence of the Constitutional judges that they select (9 years term of office)
The President of the Republic: Election– Re-election
Once debated, now is regarded as possible due to the recent praxis (e.g.: Napolitano
2013; Mattarella 2022)
The President of the Republic: Election– Impediment
The functions of the President of the Republic, in all cases in which the President cannot perform them, shall be performed by the President of the Senate
(article 86 par. 1 Cost.)
- Temporary impediment (e.g.: temporary illness; the President is abroad; etc.)
- Permanent impediment (permanent incapacity, death, resignation, “impeachment”): the President of the Chamber of Deputies shall call an election of a new President of the Republic within 15 days (save for the exceptions provided for by the Constitution –election of the new Houses)
The President of the Republic. Election– Immunity
The President of the Republic is not responsible for the actions performed in the exercise of presidential duties, except in the case of high treason or attempt to overthrow the Constitution (article 90 Cost.)
The President of the Republic: Election– High Treason
Extreme cases (e.g.: the President of the Republic conspires with a foreign power to overthrow the Republic)
The President of the Republic: Election– Overthrow the Constitution
Manifest and severe violation of the Constitution, that the President of the Republic deliberately puts in place
The President of the Republic: Election– “Impeachment” Procedure
- The President of the Republic may be impeached (for high treason or attempt to overthrow the Constitution) by Parliament in Joint Session, with a vote by an absolute majority of its members (secret
vote) - Trial before the Constitutional Court, joined by 16
judges randomly drafted from the list of 45 citizens
having the requisites to run for the Senate, elected
by the Parliament in Joint Session itself - If the President is found guilty, they will be removed from office (early termination)
The President of the Republic: Election– Allowance
Established by law, it guarantees the autonomy/independence and prestige of the President of the Republic
The President of the Republic: Election– Presidency of the Republic
Bureaucratic machine that supports the President of the Republic in the exercise of their functions
- General Secretariat
- Offices
- Counselors and consultants
- Usually nominated and revoked by the President of
the Republic (position of trust)
The President of the Republic: Election– Secret Vote
Secret vote (“franchi tiratori”/“snipers”), with a variable majority (art. 83 par. 2 Cost.)
1. Up to the third ballot: 2/3 qualified majority
2. After the third ballot: absolute majority
- Connection with “national unity” (in its political dimension)
- In the Constituent Assembly’s view, absolute / qualified majority would promote a convergence of the political parties towards an impartial, widelyrespected figure
- Issues with election law (“Seconda Repubblica”)
