La separazione dei poteri e il Parlamento PDF

# La separazione dei poteri e il Parlamento ## La separazione dei poteri - The doctrine of the separation of powers finds its most famous formulation in *The Spirit of the Laws* by Montesquieu (1748), one of the most emblematic works of the French Enlightenment. - The separation of powers is one o...

# La separazione dei poteri e il Parlamento ## La separazione dei poteri - The doctrine of the separation of powers finds its most famous formulation in *The Spirit of the Laws* by Montesquieu (1748), one of the most emblematic works of the French Enlightenment. - The separation of powers is one of the principles underlying democracy and the state of law. - The separation of powers means that state power is no longer concentrated in the hands of one person (think of the monarch in absolute monarchies), but is **distributed among different and independent bodies** that form a system of *checks and balances*. - The Italian Constitution defines the separation of powers as follows: - Legislative power is vested in Parliament. - Executive power is vested in the Government. - Judicial power is vested in the Judiciary. - In addition to the traditional three powers, the constitution adds a fourth, the power of control, which is vested in the two bodies of guarantee: the President of the Republic and the Constitutional Court. - From a different perspective, the presence of local authorities, which enjoy broad autonomy from the central state, contributes to the distribution of power among a greater number of centers. - The European Union and other international organizations also have considerable powers in sectors of crucial importance. ## Il Parlamento - The Italian Parliament has a **bicameral structure**, that is, it is composed of two chambers: the Chamber of Deputies and the Senate of the Republic. - The Chamber of Deputies and the Senate have exactly the same powers and functions, which is known as **perfect bicameralism**. - Perfect bicameralism can make the Parliament's choices more precise, as the chambers act as a check on each other, but also makes its workings **slow and cumbersome**. - The 400 members of the Chamber of Deputies are referred to as Deputies and Deputy. - The 200 members of the Senate are referred to as Senators and Senators. - When referring to both deputies and senators, the term **parlamentarian** is used. - The Italian Constitution originally stipulated that there would be 630 Deputies and 315 Senators. - The **constitutional reform of 2020 on "cutting parliamentarians" reduced the number to the current level**. - Members of Parliament are elected by all citizens and residents aged over 18. - To be elected to the Senate, candidates must be at least 40 years old (this age requirement reflects the etymology of the word "senate", which derives from *senex*, meaning "old"). - When the Chamber of Deputies and the Senate **meet together, they form the Parliament in joint session**. This happens, for example, when they have to elect the President of the Republic. - The Senate also includes a small group of unelected Senators, known as **Senators for life**. There can be a maximum of five. - Senators for life are former Presidents of the Republic, automatically becoming senators when their term ends. They can also be citizens who have brought **great honor to the nation through their contribution in the social, scientific, artistic and literary fields**. These senators are appointed by the President of the Republic. - Parlamentarians remain in office for five years. This period is referred to as a **legislature**. Be careful not to confuse the term *legislature* with *legislation*. The former refers to the period of time between two general elections, while the latter refers to the body of laws. - A legislature may last less than five years if the chambers are **dissolved prematurely**. This may happen if the Parliament finds itself in a situation of **paralysis** because the political forces are unable to overcome their differences. - In such cases, the President of the Republic may dissolve the chambers, thus summoning the voters by means of new elections. - However, the President may not dissolve the chambers during the **six-month period before their term ends,** except if this period coincides with the last six months of the legislature. - This prohibition is intended to prevent the President from using this power to get rid of a parliament that is hostile to his re-election. ## Organisation of Parliament - The Chamber of Deputies is located in the Palazzo di Montecitorio. - The Senate of the Republic is located in the Palazzo Madama. - In addition to 200 senators and senators, the Senate also has up to 5 senators and senators for life. - Members of Parliament are elected by all citizens and residents over 18. - To be elected to the Chamber of Deputies, candidates must be at least 25 years old. - To be elected to the Senate, candidates must be at least 40 years old. - Unable to be elected to parliament are those who have committed serious crimes or who hold an office that gives them an unfair advantage over other candidates. - Deputies and Senators are divided into **parliamentary groups** based on their respective political affiliations, for example, the Brothers of Italy parliamentary group, the Five Star Movement parliamentary group, the Democratic Party parliamentary group, etc. - Joining a parliamentary group is obligatory, as those who do not belong will be automatically placed in the **Mixed Group**. - Each chamber elects its **President**. The President presides over the chamber's activities. - The **President of the Senate** is the **second highest official in the state** after the President of the Republic. If the President of the Republic is unable to perform his duties temporarily, the President of the Senate will take on his role. - The **President of the Chamber of Deputies** is the **third highest official in the state,** and presides over joint sessions of the two chambers. In this case, the Senators go to the Palazzo di Montecitorio. - Members of parliament usually do not meet as one body, but are divided into **standing committees**, each specializing in a specific subject matter (health, education, finance, transport, agriculture, environment, etc.). ## Majority and Opposition - The term **majority** refers to the political parties that support the government in office. - The term **opposition** refers to the political parties that oppose the government’s activities. - Opposition parties naturally seek to increase their support among voters so as to form the majority and thus become the government. - They also have an important role to play while they are in opposition. - Opposition parties provide a **control function** by scrutinizing the government's activities. - Opposition parties also provide a **critical function** by highlighting what they see as shortcomings in the government's performance and putting forward alternative proposals. In some cases, they can even get their proposals accepted if they can convince part of the majority to support them. ## How Parliamentarians Vote - Parliamentary decisions must fulfil two requirements in order to be valid: - a **legal quorum** must be present in the chamber, - the decision must receive a **majority vote of those present** (this is known as a **simple majority**). - For more important matters, where it is necessary to have greater consensus, the Constitution requires **a larger majority**. For example, a **two-thirds majority** is required to elect the President of the Republic. - Parliamentarians vote in a **public vote**, where each member states their vote clearly. In rare cases where a **secret vote** is permitted, members enter a wooden booth with heavy velvet curtains (known as the "catafalque") to cast their vote. - Voting by secret ballot is an exception because it is opaque and encourages **crossing of the floor**. ## Parliamentary Immunities - In order to allow members of parliament to perform their duties without being subject to pressure or interference, the Constitution grants them certain immunities. (Article 68 of the Constitution): - The **immunity from legal action** for opinions expressed and votes cast: each member of parliament can freely express their views in Parliament, on television or on social media, without fear of being called to account for their words. They can also vote as they see fit. But it is important to remember that this immunity only applies when the member of parliament is carrying out his or her duties. Thus, a senator who insults a driver for cutting him off on the road cannot defend himself by claiming that he was simply expressing his views. - **Penal immunity:** without the permission of the chamber to which they belong, members of parliament may not be subjected to personal or home searches carried out by the judiciary, the judiciary may not intercept their communications (phone calls, chats, emails). They may not be arrested unless they are caught in the act of committing a crime. ## Key Terms - **Legal quorum** means that the majority of members must be present in the chamber in order to prevent important decisions being taken by a small number of members. - The term “**crossing the floor** " originates in military language and refers to members of parliament who use the secret ballot to vote contrary to the line of their group, acting like snipers hidden in the shadows. - In medicine, **immunity** refers to the resistance of an organism to attack by viruses and bacteria. Members of parliament also enjoy a "system of immunity", since they are protected from unfair attacks by the judiciary through guarantees. ## Before and After Tangentopoli: The story of parliamentary immunity - Originally, the Constitution provided for a stronger form of parliamentary immunity. - The judiciary was prohibited from opening investigations into members of parliament without first seeking and obtaining authorization from the Chamber to which they belonged. - This was to prevent the judiciary from abusing its power to investigate the actions of "unpopular" opponents. - Parliament misused this guarantee for a long time, systematically denying authorization to the judiciary. In practice, this meant that immunity was synonymous with impunity. - In 1992, however, the **Tangentopoli scandal broke out**. - The media coined this phrase to describe the network of corruption uncovered by investigations carried out by a group of Milan magistrates, known as the "clean hands" task force. - These bribes were paid in exchange for illegal favors. - The investigations revealed a wide-ranging web of corruption involving entrepreneurs, politicians and local authority figures, and even members of criminal organizations. - To prevent a corrupt political class from continuing to benefit from immunity, the system was reformed in 1993. - The judiciary no longer needs to seek authorization from a member’s chamber before launching a criminal investigation. ## How Laws Are Made - While the legislative process is not the Parliament's only activity, it is one of its most defining features. - The legislative process can be described as a path known in Latin as *iter*, meaning "journey" or "way". - It can be broken down into five stages. - The first stage is **the initiative**: A bill can be initiated by any of the following five actors: - the Government, - an individual member of parliament, - regional council, - the National Council for Economics and Labor (CNEL), - or the people who have collected at least 50,000 signatures in support of their proposal (this is known as a people’s initiative). - The second stage **the approval**: A bill is first submitted to one of the two chambers, it does not matter which one. Assuming it is submitted to the Chamber of Deputies, the chamber will refer the bill to the relevant **committee**: for example, if it concerns education, the Education Committee. - The committee's task is to examine the bill and produce a report on it for the rest of the chamber. - Once the Chamber of Deputies has approved the bill, it will send it on the Senate for their approval. - If the Senate amends the bill, the amended bill must be sent back to the Chamber of Deputies for a further vote. - If, in turn, the Chamber of Deputies introduces further amendments, it must return the bill to the Senate for a further vote. - This process of passing a bill back and forth between the two chambers is referred to as **shuttling** and continues until both chambers approve the same text. - This process can take years and is one of the drawbacks of the bicameral system. - Sometimes, the opposition will deliberately submit thousands of amendments in an attempt to block a particular bill. This practice is known as **obstructionism**. - The third stage is the **promulgation**: - This is done by the President of the Republic, who is legally obliged to abide by the law and thus authorizes its publication in the Official Gazette. - However, the President, who is the guardian of the Constitution, can exercise **the power of referral** if he or she considers the law to be incompatible with the Constitution. This means that the law will be sent back to the chambers together with a reasoned explanation. - If the chambers re-approve the law unchanged, the President must promulgate it. - Note that the power to refer therefore does not give the president any sort of **veto power**. - The fourth stage is **publication in the Official Gazette**. - This is considered notification to all citizens. Publication establishes a presumption of knowledge on the part of all citizens: it is assumed that all citizens are aware of the law. As the Roman saying goes, ignorance of the law is no excuse. No one can defend themselves by saying "I didn't know it was against the law"! - The fifth stage is **entry into force**: - The law comes into force, that is, it begins to have legal effect, **15 days after publication in the Official Gazette**. - The period between publication and entry into force is called the **period of suspension**. - In some cases, this period may be shorter or longer than 15 days. ## How to Repeal or Amend a Law - Citizens can repeal a law by means of a **repealing referendum**. - This is an instrument of direct democracy. - The referendum on the abrogation of a law will ask citizens to decide whether a law should be abrogated or not. **The decision to abrogate a law requires a ‘Yes’ vote**. - The referendum must be initiated by either five regional councils or by 500,000 citizens. - Citizens can now sign petitions using digital tools. - For the referendum to be valid, **a legal quorum** must be present, meaning that a majority of voters must have participated. - However, the referendum itself requires a **double majority**, meaning that not only must at least half of the registered voters have participated, but the majority of these voters must also have indicated their support for the proposal. - If this double majority is not achieved, either because the required number of voters failed to participate or because the majority were against the proposal, the referendum will fail. ## Types of Referendums - **Repealing referendum:** asks voters whether they want a particular law or part of a law to be repealed. This is why voters have to vote Yes in favor of repealing the law, and No to maintain the existing law. - **Constitutional referendum**: asks voters whether they wish to approve a law that amends the Constitution. - This law must already be approved by the chambers, but not with the required two-thirds majority. - The voters are asked to say Yes if they wish to approve the amendment or No if they wish to reject it. - In constitutional referendums, **there is no legal quorum**, meaning that the referendum is valid whoever participates. - **Institutional referendum:** deals with institutions or the form of government. - These referendums occur in times of historical upheaval. - In Italy, for example, the institutional referendum held on June 2, 1946, decided the outcome of the conflict between the republic and the monarchy. ## Key Terms: - **Regional council:** the parliament of each region. - **Navette:** a French word meaning "shuttle", referring to the back-and-forth movement of bills between the two chambers. - **Official Gazette**: Italy's official journal of legislation. - **Promulgate**: from the Latin, literally meaning "to milk out" or "to squeeze out". It refers to the act of the President of the Republic of authorizing publication of the law. This is as if the law were being "released" from Parliament. - **Suspension**: a Latin term that means "stopping", as when, in the case of a law, the relevant period expires. Also, the term *vacancy* derives from *vacatio*, referring to periods when work or school are not in session. - **Referendum**: from the Latin, literally meaning "to refer to". In effect, the state refers its decisions to the voters. - **Repeal**: from the Latin, meaning "to abolish". A repealing referendum aims to abolish a specific law or part of a law. - **Quorum**: from Latin, literally meaning "of whom". The required number of voters necessary for the outcome of a vote to be valid.