Quirinale, constitutionalist Marini: “Without majority ‘prorogatio’ Mattarella or Casellati in substitute”

The professor of Tor Vergata: “These are problematic solutions that should be avoided. It is unthinkable to envisage extensions of Mattarella de facto through deserted voting. Impossible extension of the right of office. Facilitate parliamentary or remote voting or by arranging more ballots”

The health emergency could have repercussions on institutional life compared to the Quirinale match, opening up to completely new scenarios: the spread of infections does not in fact spare the voters of the President of the Republic and the electoral procedures could last beyond the expiry of the mandate of President Mattarella . So what happens if the majority is not reached within the seven-year deadline, next February 3, also considering that the virus could knock out the parliamentarians?

“The hypothesis that a majority is not reached to allow the succession to Mattarella by February 3, that is, by the end of the seven-year term of the President in office, has never occurred. If it should happen, the Constitution can be interpreted in two directions: both in the sense that the Head of State can remain in ‘prorogatio’, and in the sense that continuity is ensured through the ‘substitute’ of the President of the Senate, therefore through President Casellati. The Constitution provides, in fact, that in all cases in which the President of the Republic cannot fulfill his functions, the latter are exercised by the President of the Senate, and the expiry of the mandate could be included in this eventuality “, with the effect that, albeit temporarily, the functions of Head of the State would be carried out by Maria Elisabetta Alberti Casellati. The constitutionalist talks about it with Adnkronos Francesco Saverio Marini, Professor of Public Law at the University of Rome Tor Vergata and Vice President of the Presidency Council of the Court of Auditors.

Who decides between the two possibilities, prorogatio or substitute? “This is also controversial. It is likely that the expiring President of the Republic will interpret the Constitution and decide, even involving the President of the Senate. However, these are objectively problematic solutions that should be avoided. In this perspective, it is absolutely unthinkable to envisage extensions of fact of the President of the Republic in office through deserted votes or long-term postponements of subsequent votes “, he replies.

And, if Draghi were elected, who would carry out the functions of head of the government? “Even this hypothesis is not expressly provided for: law 400 of 1988 regulates only cases of absence or temporary impediment, in which resignation or forfeiture from office cannot be returned. We should therefore refer to the general principles, based on which the collegial body, in the absence of the top, is chaired by the most senior member, therefore it would be up to Minister Brunetta to ensure the continuity of the body. Obviously, in any case – comments Marini – a government crisis would open, easily predictable “.

According to the professor of Tor Vergata, “it is impossible”, as happened for the municipal elections, an extension of the right of the office as president of the Republic, with a law, in the presence of the worsening of the emergency situation, “because the duration is foreseen at the constitutional level, therefore there is no time to intervene even with a constitutional reform “.

Alternatively, are there systems to facilitate the vote of parliamentarians in quarantine or in fiduciary isolation, such as remote voting? “The vote of those in quarantine could be facilitated either with a reform of the parliamentary regulation of the Chamber to allow remote voting, through the approval of a rule with an absolute majority, therefore with general consent; or, with the regulation in force, however, more ballots could be set up, even if not necessarily within the hemicycle, with dedicated routes and this could favor the vote of all “.

Opposition? “In the first hypothesis – analyzes Marini – the fear is that it will be possible to trace the author of the vote, but in reality there are systems that guarantee anonymity like the paper vote; in the second there is the fact that today covid positive cannot vote and, therefore, would come to the Chamber in violation of the rules in force against the spread of Covid. But a decree-law could allow parliamentarians in quarantine an exemption to be able to cast their vote, guaranteeing adequate security measures Moreover, the institutional relevance of this vote must be considered and also that historically almost all parliamentarians have voted for the President of the Republic, with an absence rate that is always close to zero “, he concludes.

(by Roberta Lanzara)