Giorgio Baruchello

Giorgio Baruchello

Giorgio Baruchello er prófessor í heimspeki við Háskólann á Akureyri. Hann lauk doktorsnámi í heimspeki frá Háskólanum í Guelph í Kanada. Á meðal þess sem hann rannsakar er félagsheimspeki, kenningar um gildi og verðmæti og hugmyndasaga. Hann ritstýrir tímaritinu Nordicum-Mediterr- aneum (http://nome.unak.is) sem vistað er innan Háskólans á Akureyri.


Grein birt í: Lögfræðingur 2012

The President of the Republic in the Italian Constitution

1. The Birth of the Italian Republic

From 1861 to the end of World War II (WWII) the head of the Italian State was a King of the Savoy dynasty, ruling over a constitutional monarchy grounded on the Statuto­ albertino, the constitution the King of Sardinia granted to his subjects in 1848. It was only in 1946 that the republican form of government replaced the monarchic one, despite Italy’s long familiarity with republican experiments, including Cato’s and Cicero’s Rome, the seafaring Genoese and Venetian states of the Middle Ages, and the Napoleonic Cisalpine and Cispadan republics of Northern Italy.1

Politically, the advent of the republic in 1946 was the outcome of the royal family’s support for Mussolini’s fascist dictatorship (1922-1943) and Italy’s consequent entry in WWII. That military choice proved disastrous for the nation, then on the verge of economic and diplomatic bankruptcy, torn by civil warfare and, between 1943 and 1945, occupied in the North by German troops and in the South by Allied troops.2 

Formally, the advent of the republic in 1946 was the result of a referendum concerning the form of State desired by the Italian population. 12.717.923 Italian citizens opted for the republic, against 10.719.284 Italian citizens wishing to retain the monarchy.3 On the same day, the Italian citizens were called to vote for a Constitutional Assembly that should produce a new constitutional charter. The outcome of this Assembly’s activity was the 1948 national Constitution that, though variously amended later on several occasions, is still in force in Italy today.4

2. The Institutional Framework

The 1948 Constitution established a bicameral Parliament comprising a Chamber of Deputies and a Senate, a separate judiciary, and an executive cabinet or Council of Ministers presided by the President of the Council, i.e. Italy’s Prime Minister.5

The Prime Minister actually chooses the Ministers of his cabinet, although all of them are formally nominated by the President of the Republic. Until the early 1990s, the Prime Minister was nominated in consultation with the Presidents of the two houses of Parliament, following the advice of leading representatives thereof.6 Parliamentary groups are also formed in the two houses following general elections and each of them has its own official representative. General elections are held every five years or ensuing to the dissolution of the Parliament by the President of the Republic, due to the government’s loss of support by a vote of no confidence in either house.7 

However, as a result of changes to the electoral system introduced in 1993, the institutional praxis has been such that the Prime Minister is nominated by the President of the Republic in the formal way that I have just summarised, yet following prior and explicit indication by the party and/or coalition of parties competing in the national elections.8 In other words, the designated leader of the winning political party and/or coalition is nominated Prime Minister by the President of the Republic. The Prime Minister then selects the members of his new cabinet and faces the Parliament seeking a vote of confidence to begin its activities. This praxis does not hold whenever the Council of Ministers has been unable to retain the confidence of both houses of Parliament, which is far from uncommon in the history of republican Italy.9

3. The President of the Republic 10

According to the Constitution, the President of the Republic is elected for seven years by the Parliament sitting jointly with several delegates from the country’s twenty regional governments (arts. 83, 84, 85, 91).11 These delegates amount to three for each region except Valle d’Aosta, the smallest one, which sends one delegate only. They are elected by the regional councils and do not normally sit with the national Parliament. It is only upon the election of the President that they do so, in order to ensure the representation of Italy’s minorities (art. 83). 

The President of the Republic is the official “Head of State” and is said to “represent the national unity” (art. 87).12 His office is incompatible with any other public office: a President can only serve as President (art. 84).13 If unable to serve for a limited period of time, his functions can be taken over temporarily by the President of the Senate. If severely ill, dead or otherwise forced to resign, the President of the Chamber of Deputies must see to the election of a new President (art. 86).14 The President of the Republic receives a special budget, an emblem, an honorary residence for his official activities, and a body of assistants comprising, amongst others, experienced constitutional lawyers (art. 84).

The President’s official acts can be organised in four main typologies, i.e. with reference to the executive, administrative, judicial and legislative functions that they serve. Yet most of these acts share the fundamental trait of being aimed at securing the respect of the Constitution by the other institutions of the State. In the language of Italian constitutionalists, the President of the Republic is the “guarantor” or “guardian” of the Constitution, which he swears to uphold upon commencement of his office (art. 91).15 As such, he is expected to display utter impartiality and cautiousness in all public activities, including statements to the media. Henceforth, although not liable for his official acts, he can be held responsible for “high treason” and/or an “assault on the Constitution”. These rather abstract species of crimes are up to the Constitutional Court to adjudicate, following an accusation by a specially created Parliamentary commission (art. 90).16 

3a. (executive functions)

As already mentioned above, the President of the Republic nominates the Prime Minister (art. 92). Moreover, he nominates the Ministers chosen by the Prime Minister (art. 92). Typically, though not always, these are merely formal acts,17 and so are his conferrals of special honours, recognitions and nominations of major bureaucrats and other public employees. Normally, the President of the Republic operates them upon request of the Council of Ministers and/or the Prime Minister, in accordance with the law (art. 87).18

Prompted by the government he acknowledges and receives foreign diplomats and dignitaries, and ratifies international treaties, following Parliamentary authorisation whenever these treaties deal with the territorial integrity of the country, have manifest political aims, concern regulations or adjudications by international courts, involve costs for the State budget or modifications to the existing laws (arts. 80 and 87).19

Prompted and de facto directed by the Council of Ministers is also the role of the President of the Republic qua Commander of the Armed Forces and President of the War Council,20 as well as his prerogative vis-à-vis any declaration of “state of war”.21

This prerogative can be exercised exclusively prior to a permission by the Parliament (art. 87).22 Were a President of the Republic to disagree with the government’s intention to declare a “state of war”, he could probably send the government’s bill on the matter, most likely an emergency decree, to the Parliament for further evaluation and, if the proposal is accepted, resign in protest.23

In accordance with the law and prior consultation with a special commission of Deputies and Senators for regional affairs, the President of the Republic can decree the dissolution of regional councils and/or the discharge of regional Presidents due to reasons of national security, because of acts contrary to the Constitution, and/or following serious criminal offences (art. 126).24

3b. (administrative functions)

The President of the Republic decrees the annulment of illegitimate administrative acts.25 He also adjudicates upon extraordinary appeals dealing with issues arising from definitive decisions by administrative legal entities. In both cases, the President’s decrees are typically mere formal acts following governmental decisions and the advice of judicial bodies designated by the law.26

3c. (judicial functions)

In accordance with the law, the President of the Republic nominates five of the fifteen judges forming the Constitutional Court (art. 135). This is one of the few cases where he has clear primacy and the government’s co-signature is expected to follow as a mere formality.27 He is also President of the Superior Council of the Judiciary (hereafter “Council”), which oversees to the proper functioning of the Italian courts of law (arts. 87 and 104). As such, the President not only signifies with his presence the independence of the judiciary from both executive and legislative powers and its high constitutional relevance, but he must also direct the elections of the Council’s members, convene and direct the sessions of the Council – also and especially as regards its disciplinary branch – and nominate the Council’s internal commissions. Together with the Minister of Justice, he can send official communiqués to the Council and decide its disbandment before due time. Nominations, promotions, demotions, inspections and transferrals of judges are also formally authorised by the President, who acts following decisions by the Minister of Justice and the Council itself. Normally, in consultation with the Minister of Justice, he grants pardons and commutations of penalties (art. 87).28 In the judicial praxis developed since 1948, the President’s role in this sense has sometimes become a sort of third degree of judicial appeal.29

3d. (legislative functions)

As a general principle of institutional equilibrium, article 89 of the Constitution states that “No act of the President of the Republic is valid unless co-signed by the pertinent Minister, who thus assumes responsibility thereof” and “All acts possessing legislative validity and any other act indicated by the law are co-signed by the President of the Council of Ministers” i.e. the Prime Minister.30 After consulting with the Presidents of the two houses of Parliament, the President of the Republic may dissolve the Parliament (either house or both houses) and call for a new round of national elections (arts. 87, 88).31 In consultation with the government, he decides the dates for such elections and for the initiation of the new Parliament (art. 87). Analogously, the President calls for referenda, i.e. popular votes, provided that these referenda comply with all formal requirements (art. 87).32 

On the other hand,the government’s co-signature is expected to follow without hindrance with regards to a few selected acts by the President having legislative functions. One of them is the President’s nomination of five senators appointed for life (art. 59). These are Italian citizens that have excelled in social, artistic, literary or scientific activities. The President himself becomes a life senator after his mandate expires.

Similarly, the President may convene, under extraordinary circumstances, either house of Parliament (art. 62)33 – which has never happened so far – and, slightly more frequently, send formal communiqués to them, typically concerning constitutionally relevant matters (art. 87).34

The same applies to the President’s authorisation vis-à-vis the presentation to the Parliament of governmental decrees35 and law proposals (art. 87). Then, the President serves as a constitutional check on the laws that the government wishes to see promulgated by the Parliament.36 He can thus invite the government to reconsider a statutory instrument that may be constitutionally dubious.37 Still, the legal praxis unfolded since 1948 makes it unlikely for the President to refuse to sign a governmental act presented to him once and impossible to refuse to sign a governmental act presented to him twice.38

The same logic applies to all laws and equivalent statutory instruments passed by the Parliament, which must be approved by the President of the Republic (art. 87). Once again, the President serves as a constitutional check on the laws that the Parliament wishes to promulgate, including amendments to the Constitution.39 He can therefore send a law proposal back to the Parliament for further consideration, justifying in a written document the reasons for his decision. If the Parliament approves the same law again, then the President of the Republic must approve it too (art. 74)— the Parliament qua representative of the people’s will is sovereign, not the President of the Republic. Ordinarily, laws are sent back to the Parliament to make sure that they are viable vis-à-vis the State budget.40 It is only under extraordinary circumstances that the President of the Republic refuses to approve a law passed by the Parliament. Typically, such a refusal indicates that there are serious doubts concerning the law’s constitutionality.41 However, if the Parliament wishes to promulgate it, then the President cannot do more than sending it back once. After that, only the Constitutional Court can intervene, if addressed by the government, a regional government, or any judge adjudicating a case in an Italian court of law (art. 127).42

4. The Historical Experience

Throughout Italy’s republican history, the President has been regarded, on the one hand, as an important ceremonial figure embodying the unity of the nation in a dignified manner.43 On the other hand, he has been considered also as the State’s highest-level civil servant, performing a number of formal tasks that the Constitution defines fairly clearly.44 Indeed, Italy’s constitutionalists have commonly referred to the latter characterisation of the President as the “President-notary” (presidente­notaio).

Such a notary-like characterisation was the norm during the nearly five decades (1948-1994) in which the Christian Democratic Party (Democrazia­ Cristiana) had de facto control over all the governments that were formed in Italy. The dissolution of this party in 1994 – caused primarily by a massive wave of financial scandals within its ranks – and the ensuing more fluid political life of the country have somewhat reduced the notary-like characterisation of the President. In particular, his constitutionally required determination of viable Parliamentary majorities after political crises and the consequent appointment of new heads of government without voters’ direct involvement have involved shifts in political power that republican Italy had never experienced before 1994. Still, heated political wrangles and frequent media hypes aside, no President but one has ever been formally accused of misconduct in the exercise of his functions.

To be specific, the only exception to an otherwise very smooth formal record took place in 1991, when a minority of Italy’s MPs presented a list of 29 alleged violations by President Cossiga that, in their view, amounted to an “assault on the Constitution”. All of these alleged violations regarded public statements made by Cossiga qua President, especially about the prolonged participation of the Italian secret services into a covert NATO paramilitary organisation named “Gladio”, whose main aims were to intervene in case of a Soviet invasion of Italy and prevent communism from being established in the country. A Parliamentary commis- sion was established to assess the validity of the formal accusation, which was officially rejected in 1992. 

End notes

1. Italian legal and institutional culture reflects the lasting influence of Roman law, the Napoleonic code and the attempt to counterbalance deeply-rooted tendencies to local autonomy by means of centralized con- trol emanating from Rome, the country’s capital, where all major public offices are located.

2. American troops are still stationed on Italian soil (as of today, Italy joining NATO in 1949. 

3. The 1946 popular vote was also the first time in Italian history that adult women were granted the right to participate in any election.

4. Overall, the Italian Constitution of 1948 has been amended fourteen times. However, with the exception of the introduction of substantial regional decentralisation in 1970, no other major constitutional amendment has ever been passed, whether because of contrary popular vote (e.g. 2006 rejection of the 2005 Parliamentary project for further regional decentralisation), absence of mandatory 50+1%quorum for valid popular vote (e.g. 2001 and 1999 failed constitutional reformations), or lack of political cohesion (e.g. folded Parliamentary Commissions for constitutional reformation convened in 1983-1985, 1992-1994 and 1997-1998).

5. Hereafter referred to as the Prime Minister (PM in these notes), as to avoid confusion with “the President”, meaning the President of the Republic.

6.  I use the male possessive because, thus far, all PMs and Presidents of the Republic have been men.

7.  The power that this system confers to political parties is considerable, as it allows for extra-Parliamentary agreements amongst political leaders that the Parliament merely ratifies formally. Many scholars, including Calise and Sartori, have described it as a “particracy”. 

8. The new system introduced in the year 1993 was the so-called Mattarellum, from the name of its creator, MP Sergio Mattarella (eminent political scientist Giovanni Sartori concocted the enduring nickname). It was applied for the first time in 1994 and it changed the previous system of thorough proportional representation into a mostly first-pass-the-post one. The Mattarellum was replaced in 2005 by the so-called Porcellum, thus dubbed by the media because of the curious definition provided of it by its own instigator, MP Roberto Calderoli, who called it “una porcata” (“a dirty trick”, “porcata” deriving from “porco” i.e. “pig”). The Porcellum reintroduced proportional representation, yet amended so as to reduce the instability characterizing the Italian Parliaments in the period 1946-1994.

9. The average life expectancy of Italian governments since 1948 has been less than a year. Indeed, there were five governments that did not even obtain the initial vote of confidence from the Parliament and were forced to resign immediately after their composition (1953 De Gasperi #8, 1954 Fanfani #1, 1972 Andreotti #1, 1975 Andreotti #5, 1987 Fanfani #6).

10.  To this day, there have been eleven Presidents of the Republic: Enrico De Nicola (1948); Luigi Einaudi (1948-1955); Giovanni Gronchi (1955-1962); Antonio Segni (1962-1964); Giuseppe Saragat (1964-1971); Giovanni Leone (1971-1978); Sandro Pertini (1978-1985); Francesco Cossiga (1985-1992); Oscar Luigi Scalfaro (1992-1999); Carlo Azeglio Ciampi (1999-2006); Giorgio Napolitano (2006-2013).

11. Italy is divided in smaller administrative units called “regions”, subdivided further into “provinces” and these into “municipalities”. 

12. The notion of national unity is extremely significant in a country like Italy, which unified later than most other European nations and which has had a long significant history of independent princedoms, domin- ions and republics.

13. On the contrary, PMs and Ministers are typically Members of Parliament.

14.  The election is postponed if the Parliament is dissolved or is to be dissolved within three months. In order to facilitate the election of a new President, Pertini and Cossiga resigned ahead of the constitutionally set conclusion of their mandate. Also, illness and death are actual risks, since only Italian citizens of 50 years of age or older can become Presidents of the Republic (art. 84). Historically, De Nicola and Segni did resign because of health reasons.

15. The latter expression was actually introduced in the European scholarly language by Carl Schmitt in 1931.

16.  There exists only one and partial instance of accusation for “assault of the Constitution” regarding President Cossiga, whose resignation in 1992 brought to a halt the evaluation of his case. The proceedings from the discussions occurred amongst the members of the Parliamentary commission dealing with the case display much difficulty in configuring exactly the features of such an abstract species of crime. 

17. For example, President Scalfaro advised formally Silvio Berlusconi vis-à-vis the composition of his first cabinet in 1994.

18. Exceptions to this principle are honours and endowments emanating directly from the office of the President of the Republic (e.g. President Cossiga’s endowment for the institution of a lectureship in Italian at the University of Iceland). These exceptions are part of what Italian constitutionalists refer to as “Presidential acts” as opposed to “ministerial acts by the President”.

19. Hypothetically, domestic laws could attempt to reduce and/or curtail severely the President’s authority, but any excess in this sense could be rejected as unconstitutional by the Constitutional Court, as it would prevent the President from performing his role as check on the government’s and the Parliament’s activity. In practice, however, international law is attaining this end, for the more and more common use of simplified treaties having immediate effect, signed hence ratified by Ministers or delegates of theirs, fall outside the scope of both Parliamentary authorisation and Presidential constitutional control, and force them both to face a fait accompli by the executive. This is particularly true of secret treaties which the government can withhold on grounds of national prestige and security.

20. The President is meant to be part of such bodies qua supreme symbol of the nation.

21.  This formula is used rather than an outright declaration of war because the Italian Constitution prohibits any war of aggression.

22.  This requirement has major historical significance for the Italian State, since the declaration of war had been previously the exclusive privilege of the king, who had used it, for example, in the year 1915 in con- sultation with the government, but against the majority of Italy’s members of Parliament. 

23.  This is sheer speculation, for no such case has yet occurred and is rather unlikely to ever occur. As regards a government’s hypothetical desire to have the state of war declared by the President against the Parliament’s will, it follows from what stated in the main text that any such desire would remain unfulfilled.

24.  All such Presidential decrees would result from consultation with or initiation by the government.

25.  The President’s decree follows a prior governmental decision, which, as of the law n. 241 of 1990, must be notified and justified in writing to the administrative legal entity affected.

26.  The President of the Republic is required to oversee the constitutionality of the government’s decisions concerning the extraordinary appeals, which are filed to the pertinent Ministry, the President of the Re- public and the legal counterpart of the appealing party.

27. The President’s primacy on this subject was made explicit by the law n. 87 of the 11th March 1953, art. 4. 

28. Before 1992 the President would also grant amnesties and indults upon delegation by the Parliament. Since 1992 that power has been ascribed solely to the Parliament.

29. Under Einaudi and Gronchi about 10% of all sentences by penal tribunals were annulled or reduced by Presidential pardons. Under the past few Presidents, the prevailing custom has been much more re- strained.

30. The quasiabsolute absence of unchecked actions within the Italian institutional framework are meant to indicate the departure from the monarchic form of government, whereby the king is granted absolute au- thority on several decisive matters.

31 He may do so unless he is serving the last six months of his mandate and these do not coincide with the last six months of the legislature.

32 Hypothetically, however, he may call for a popular vote that the government is trying to postpone indefinitely for political reasons. 

33. By right, whenever one house of Parliament is thus convened the other one is too.

34.   Several Presidents never sent any official communiqués to the Parliament and most of those who did send any limited themselves to one during their whole mandate. The President is not meant to initiate leg- islative activity: that is seen as the Parliament’s prerogative.

35.  Whereas law proposals must first go through Parliamentary evaluation and vote, governmental decrees have immediate effect, provided the President’s authorisation, though they must be converted later into ordinary Parliamentary law.

36.  Although rationalised after 1991, the determination of the scope of the President’s authority concerning governmental decrees and law proposals is still a matter of praxis rather than of clear-cut codification and it has been such that the President’s activity qua constitutional check has been favourite over bureaucratic expediency. As a rule of thumb, however, the more explicit and decisive the government’s involve- ment is, the more mandatory the President’s activity qua co-signatory becomes.

37.  The President, qua guarantor of the Constitution, must abstain from political considerations.

38.  The President may still send the governmental decree or law proposal back to the Parliament when it returns to his attention as law that the Parliament wishes to promulgate.

39.  Before the law n.13 of the 12th January 1991, the President of the Republic would authorise formally an even broader variety and number of governmental and regional acts. 

40. Since 1948 there has been an average of one law per biennium sent back to the Parliament on grounds of unsound budgeting (art. 81).

41. Moreover, of the about 60 cases of Presidential rejection, 21 belong to President Cossiga’s mandate, who was unusually proactive in making use of his prerogative.

42. Much media coverage usually accompanies such Presidential rejections.

43. To this day, only Leone was accused repeatedly of not being dignified enough qua President. Although such accusations had no legal force, it is believed that they contributed to Leone’s eventual resignation before the constitutionally set conclusion of his mandate.

44. Thus far, the only major case of interpretative uncertainty with regard to the President‘s functions pertainst to art. 59 i.e. whether each President may appoint five life senators or there may be only five life senators in total by Presidential appointment. 

References

Amato, G. and Barbera, A. (eds.), Manuale di diritto pubblico, Bologna: Il Mulino, 1997.

Bernabei, M., Tipologia­ degli­ atti­ del­ Presidente­ della­ Repubblica­ nell’ordinamento­ costitu­ zionale­italiano, tesi di laurea in Scienze Politiche, Università di Padova, 2002-2003.

Crisafulli, V., Lezioni­di­diritto­costituzionale, Padua: CEDAM, 1984.

D’Alimonte, R. and Fusaro, C., La­legislazione­elettorale­italiana, Bologna: Il Mulino, 2008.

Galeotti S., Il­Presidente­della­Repubblica­e­garante­della­Costituzione, Milan: Giuffrè, 1992.

Luciani, M. e Volpi, M., Il­Presidente­della­Repubblica, Bologna: Il Mulino, 1997.

Paladin L., “Presidente della repubblica”,­ Enciclopedia­ del­ Diritto, volume XXXV, Milan: Giuffrè, 1986.

Pasquino, G., I­sistemi­elettorali, Bologna: Il Mulino, 2006. 

 

 

 



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