Riassunto esame Fundamental rights, Prof. Cossiri Angela Giuseppina, libro consigliato The Constitution of Italy. A Contextual Analysis, Lupo Cartabia

Head of the State in Parliamentary Form of Government

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

regionalrepresentatives (3 appointed per each Region except for Valle d'Aosta (1)).

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

Article 87.1 IC '…and represents national→To enlarge representative basis of the PoR –unity' article 87

According to 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.

Mandate→ 7 years

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

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

• Napolitano (2013, resigned in 2015, to underline that his election was an exceptional event)
• Mattarella (2022)→ symptom of

Political crisis

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 person→ but limits on investigative tools that may jeopardize [ICC no. 1/2013] the communication of the PoR as declared by the

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 of some acts is decided by the government, others by the president himself, and others are the result 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, to deliberate again.

→This 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-partes 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.