Appunti di Fundamental Law

SECONDARY NORMATIVE POWERS

secondary laws.

THE PRESIDENT OF THE REPUBLIC

Heads of State in the EU

→ 6 Monarchies in the EU Member States (Belgium, Denmark, Luxembourg, Sweden, the Netherlands, Spain).

Monarchs do not exercise absolute power.

● Marginal role because democracies (even though the Head of the State is not elected)

→21 Republics

Distinction between formal government and formal state:

→ 1 fully Presidential form of Government: Cyprus (Head of State and Government)

→20 Member States: parliamentary or popular election

Where Head of States are directly involved in the Government activities, there is a specific situation in

which the form of government, which is regarded as:

→Semi-presidential (France):

PRESIDENTIAL FoG

•President = Head of State directly elected by the people (universal suffrage)

•No vote of no confidence by the Parliament

•Chair and lead their own Government (all members are appointed by them)

A typical example of Presidential Government is offered by the U. S . :

→

-Congress (Senate + House of Representative) legislative power (+impeachment)

→

-PoUS:he exercises executive power. veto power (qualified majority to overcome)

There are two instruments by which the precedent and the Congress can influence each other:

The congress can impeach the President and he can express a veto, that can be overcome bu a qalifified

majority

SEMI-PRESIDENTIAL FoG

•President = Head of State directly elected by the people (universal suffrage)

•No vote of no confidence, but they rule through the Government (appointed by them)

•The Government shall have the confidence of the Parliament

The relation of confidence is established between the Government, appointed by the President, who is elected

by the government, and the Parliament elected by the people.

An example is offered by France

HEAD OF THE STATE IN PARLIAMENTARY Fog

Elected by the Parliament (indirect election)

In Parliamentary Form of Government, the President of Republic may play a different roles:

- merely symbolic and ceremonial role

-leading figure – influential and powerful

Over the time, Italian Presidents have vested both roles.

The powers of the Republic President are strongly influenced also by the political situation

For example, when political parties are unable to reach an agreement, a simple majority, the President can

assume a leading role in forming the Government, by appointing a technocratic government.

This eventually happened in 2021, when Mario Draghi, president of the ECB, was appointed by the President

of the Republic, since political parties were unable to form a government .

ITALY-ELECTION

In Italy the Head of the State is elected by the Parliament in a joint session(indirectly elected by the people).

The two Houses of the Parliament, the Italian Deputies and the Senate, and 58 regional representatives (3

appointed per each Region except for Valle d’Aosta (1)).

This system was organized in this way for some specific reasons:

→To enlarge representative basis of the PoR –Article 87.1 IC ‘...and represents national unity’

According to article 87 the President represents the national unity of the Republic.

⅔ first two rounds (qualified majority), then absolute majority are requirements established by the

constitution to elect a president of the Republic.

Italy –Election (II)

Requirements:

1.50 years old

2.Enjoys civil and political rights

The person appointed as president is usually an outstanding figure, who distinguishes himself for his moral

features. 7 years

Mandate→

The president may be re-elected (even if 55 years never constitutional custom?)

passed→

In recent times, we had a couple re-election:

-Napolitano (2013, resigned in 2015, to underline that his election was an exceptional event)

-Mattarella symptom of political crisis

(2022)→

Political forces were not able to find an agreement.

IRRESPONSIBILITY(I)

The figure of the president is shaped on the model of the Monarch.

In pluralist democracies the principle according to which ‘The King can do no wrong’ must be tempered with

conflicting principles (power--responsibility)

A president of the republic cannot have completely irresponsible behavior.

Article 90:

The President of the Republic is not responsible for the actions performed in the exercise of the presidential

duties, except in the case of high treason or attempt against the Constitution.

In such cases, the President may be impeached by Parliament in a joint session, with an absolute majority of its

members.

Outside presidential duties, the president is responsible as any other citizen.

In the two cases, the Parliament in joint session can impeach the President.

Irresponsibility (II)

IN THE EXERCISE OF THEIR MANDATE

high treason or attempt against the Constitution

NOT DURING THE COURSE OF THEIR MANDATE

Responsible as any other but limits on investigative tools that may jeopardize the communication of

person→

the PoR as declared by the [ICC no. 1/2013]

COUNTER-SIGNATURE

Deriving from the basic idea ‘The King cannot act alone’

Political responsibility is taken over by the Government

Article 89:

No act of the President of the Republic is valid if it is not signed by the proposing Ministers, who assume

responsibility for it. The acts which have legislative strength and those laid down by law shall be countersigned

also by the President of the Council of Ministers.

In cases of lack of a proponent minister, a competent minister may be appointed to sign the President of the

Republic's act.

Over the years the italian scholarship has elaborated a distinction between the kinds of presidential acts:

-Formally presidential, but substantially governmental acts

-Formally and substantially presidential acts

-Dual/complex acts

Formally, each of them are enacted by the president, but in the substance some of them are decided by the

government, other by the president himself and others are the results of the agreement between the two

houses of Parliament

I.FORMALLY PRESIDENTIAL, SUBSTANTIALLY GOVERNMENTAL ACTS

•Appointments made by the government but adopted with an act of the president

•Ratification of international agreements

•Authorisations of legislative initiative of the Government: the government is one of the constitutional bodies

that can make a legislative initiative. However it requires an authorization coming from the President of the

Republic. Nevertheless he does not exercise any kind of legislative power.

•Enactment of Decrees-laws and Legislative Decrees:

•Promulgation of Laws

The president has the right to exercise control of the constitutionality of these kinds of governmental and

parliamentary acts.

Article 74 IC:

The President of the Republic, before promulgating a law, may request the Houses, with a reasoned message,

→This

to deliberate again. power is defined SUSPENSIVE VETO

If the Houses pass the bill once again, then the law must be promulgated.

The message should report all the constitutional issues of the law.

The more common is the promulgation with critical remarks: The president sends a reasoned message

underlying the critical remarks of the promulgation.

This is usually used in those cases in which a piece of legislation is a controversial law or a decree law.

Presidents of the Republic usually limit themselves to evident constitutional violations, since the control of

constitutionality is exercised also by the constitutional idea.

Therefore the principle on which this practice is based is to avoid the overlap of functions.

FORMALLY AND SUBSTANTIALLY PRESIDENT ACTS

•Appointment of 5 life senators, outstanding figures

•Appointment of 5 constitutional judges

5 judges of the constitutional court are elected by the Parliament in a joint session on political basis, whereas 5

judges are appointed by the President of the Republic, who in this specific situation is considered a

super-parteres figure. The appointment is made on the basis of the juridical features of outstanding people.

Therefore they are not in the political debate.

Other five judges are elected by the judiciary: three by the Court of Cassation, one by the Council of State and

one by the Court of Accounting.

•Send messages to the Houses, whose contest is intended to address some crucial topics of the country or

some particular crisis within the Parliament. The content is discretionary

•‘Poteri di estrazione’: power to make public statements.

•Power to grant pardons and commute punishments [ICC No 200/2006]

This kind of power should be considered a full presidential power, because it’s typical of monarchy.

All these acts must be countersigned.

Probably only resignation shall not be countersigned.

DUAL/COMPLEX ACTS

•Appointment of the Government [see ‘Forming the Government’]:

•Dissolution of the Houses: disciplined by the Article 88 IC:

The President of the Republic, having heard the Presidents of the Houses, may dissolve Parliament or even only

one House.

(II)The President of the Republic cannot exercise said right during the last six months of the presidential

mandate, unless said period coincides in full or in part with the last six months of Parliament.

It represents the ultimate tool to solve political crises.

The president cannot autonomously exercise this power, but he requires the support of the majority of the

government.

There are some limitations to this power to avoid the president acting as a monarch, disciplined by paragraph

2 of the art.88

THE LAST SIX MONTHS OF A PRESIDENT MANDATE ARE DEFINED SEMESTRE BIANCO.

EMPOWERMENT-RISE OF JUDICIARY POWER

No (more) judge only bouche de la ius-dicere): Judges were allowed only to declare what the

loi(iurisdictio→

law already was.

At the beginning of the emergence of Liberal States, the idea of judges as interpreters started to rise. The

principle rules which empowered judges were:

1.Interpretation according to the Constitution

2.EU national judges are not only called to apply national law, but also EU law. therefore they are

integration→

EU judges. Conflicts between national and EU law are solved by judges.

interpretation according to ECtHR case law. This convention introduced a series of fundamental

3.ECHR→

rights. Before the European Convention of Human Rights, judges used to apply national legislation.

4.Judicialization of political issues

BASIC PRINCIPLES

The fundamental law regulating judicial powers is Article 24 IC:

All persons are entitled to take judicial action to protect their individual rights and legitimate interests.

The distinction between individual rights and legitimate interests is typically italian. On the basis of this

separation,there are different judges.

They are both fundamental rights.

From an Italian perspective, legi