Lecture 18

Question 1

The President of the Republi: Powers

Answer 1

• The President of the Republic is vested with powers that intersect those of all the other constitutional bodies of the Italian constitutional system
  1. Parliament
  2. Government
  3. Judiciary
  4. Constitutional Court
  5. Electorate (NB: not technically a “constitutional body”)
• Coherent with their “role of guarantee” as safeguard of the Constitution and of national unity
• The President of the Republic can exercise their powers in a variety of ways
• Acts: formal acts having a legal value, normally in the form of a Decree of the President of the Republic (D.P.R.)
• Declarations (“Esternazioni”): Formal messages addressed to the public opinion (citizens/electors) or to one or more constitutional bodies
• Moral suasion: informal interaction with other constitutional bodies

Question 2

The President of the Republic: Powers– Acts (art. 90 Const, responsability; acts formally and substantially presidential/ governmental/ mixed; counter-signature)

Answer 2

• As a general rule, the President of the Republic is not responsible for their actions in the exercise of their functions (except for the cases of high treason or attempt to overthrow the Constitution; art. 90 Cost.)
• Counter-signature: an act of the President of the Republic shall not be valid unless it is signed by the proposing Minister (or by the President of the Council of Ministers), who shall be responsible for it (article 89 par. 1 Cost.)
• Formally and substantially presidential acts: the content of the act is determined autonomously by the President of the Republic (e.g.: appointment of constitutional judges and senators for life; granting pardons and commuting of punishments; control on statutory laws/acts having the force of law; messages to the Houses; etc.)
• In these cases, the counter-signature by a member of the Government is a “formality”: the Government cannot influence the content of the act
• Formally presidential but substantially governmental acts: the content of the act is determined by the Government (e.g.: issuing of lawdecrees, legislative decrees and regulations; appointment of high State’s officials; authorization for the tabling of governmental bills; etc.)
• In these cases, the President of the Republic’s power is limited to the control and constitutional guarantee on the content of the act (as determined by the Government)
• Mixed acts: the content of the act is determined (to some extent) jointly by the President of the Republic and another constitutional body (e.g.: appointment of the President of the Council and appointment o
  the Ministers)
• Acts with no counter-signature (exception): resignation; conflict between constitutional powers; oral communications; acts performed as President of the SCJ (CSM) and the SCD (CSD)

Question 3

The President of the Republic: Powers– Declarations (“esternazioni”)

Answer 3

• Messages addressed to other constitutional bodies or to the public opinion:
  1. Typical if directed to the Chambers
  2. Atypical if directed to the electorate (in occasion of solemnities)
• Not regulated by the Constitution: praxis
• Aimed at expressing a position on an important given matter in a public way
• Institutional content
• A repeated use of the declarations can potentially expose the President of the Republic to criticism (politicization of the role)

Question 4

The President of the Republic: Powers– Moral Suasion

Answer 4

• Informal power: the President of the Republic can exercise an “informal” influence on the other constitutional powers (Corte Cost., n. 1/2013)
• They must create and maintain a network of confidential/reserved relations with other constitutional bodies, in order to exercise their powers of guarantee of the Constitution
• Allows the PotR to intervene “upstream” instead of “downstream”, thus preventing possible open constitutional conflicts

Question 5

The President of the Republic: Powers– Parliament/ Promulgation of ordinary law

Answer 5

• In the legislative process, when a bill is approved by Parliament, the President of the Republic must promulgate it within 30 days (formal power)
• The President can send the bill back to the Houses with a motivated message explaining their reasons for doing so
• Control power (formally and substantially presidential act) in case of manifest constitutional violations (e.g.: independence of the judiciary; budget; unreasonableness; etc.)
• It is a first tentative constitutionality check. It is not an anticipation of the constitutional review performed by the Constitutional Court
• The Houses can renounce, modify or confirm the bill (in the latter case, the PotR must promulgate it)
• Can the PotR refuse promulgation for a second time?

Question 6

The President of the Republic: Powers– Parliament/ senators appointment

Answer 6

The PotR can appoint 5 senators for life (citizens who have honoured the Nation through their outstanding achievements in the social, scientific, artistic and literary fields; art. 59 par. 2 Cost.)

Question 7

The President of the Republic: Powers– Dissolution of the Parliament (procedure and limit to the power)

Answer 7

• The President of the Republic can dissolve one or both Houses of Parliament (article 88 par. 1 Cost.)
• “Implicit” conditions: non-solvable crisis of Government (no possible parliamentary majority)
• Procedure: decree of the PotR, counter-signed by the President of the Council of Ministers, after consulting the Presidents of the Houses
• The President of the Republic cannot exercise this power during the last 6 months of their mandate (socalled “white semester”)

Question 8

The President of the Republic: Powers– Government/ Formation

Answer 8

• Direction and impulse powers in the first two phases of the Government’s formation process (Consultations, “Incarico”/Pre-appointment) –formally and substantially presidential
• Appoints the President of the Council and the Ministers (article 92 par. 2 Cost.)
  1. “Mixed” act
  2. Veto power?
• Receives the Oath of office (article 93 Cost.

Question 9

The President of the Republic: Powers– Government/ Appointment of Officials, under-secretaries and vice-ministers

Answer 9

• The President of the Republic appoints high State officials in the cases provided for by the law (article 87 par. 3 Cost.)
• The President of the Republic accredits and receives diplomatic representatives, and ratifies international treaties which have been authorised by Parliament (art. 87 par. 3 Cost.)
• The President of the Republic appoints the Undersecretaries of State and Vice-Ministers

Question 10

The President of the Republic: Powers– Government/ Legislative power (role of the President of the Republic in the production of acts having force of law and regulations)

Answer 10

• The President of the Republic authorises the tabling of bills in the Houses according to the Government’s initiative (art. 87 par. 3 Cost.). Mainly a control on the form of the bill
• The President of the Republic issues all of the sources of the law produced by the Government (decrees having the force of law and regulations) (art. 87 par. 3 Cost.). Substantial control (manifest constitutional violations) / formal issuing

Question 11

The President of the Republic: Powers– Armed Forces

Answer 11

• The President of the Republic is the commander-inchief of the armed forces
• The President of the Republic in the President of the Supreme Council of Defence
• The President of the Republic issues declarations of war (deliberated by Parliament)

Question 12

The President of the Republic: Powers– Judiciary

Answer 12

• The President of the Republic is the President of the Supreme Council of the Judiciary (SCJ - CSM) (art. 87 par. 5 Cost.)
• The President of the Republic can grant pardons and commute punishments (art. 87 par. 6 Cost.)
• Once the formal or substantial nature of this presidential power was debated
  1. Conflict between the President of the Republic and the Minister of Justice (Corte Cost. n. 200/2006)
  2. Now a formally and substantially presidential power (“humanitarian” reasons)

Question 13

The President of the Republic: Powers– Constitutional Court

Answer 13

The President of the Republic selects 5 judges of the Constitutional Court (formally and substantially presidential power)

Question 14

The President of the Republic: Powers– Electorate

Answer 14

The President of the Republic announces the referendum in the cases provided for by the Constitution and by the ordinary law