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IL VINCOLO REFERENDARIO. ANALISI DEL RAPPORTO TRA IL REFERENDUM ABROGATIVO E LA LEGGE ORDINARIA

Faga, Simona (2012) IL VINCOLO REFERENDARIO. ANALISI DEL RAPPORTO TRA IL REFERENDUM ABROGATIVO E LA LEGGE ORDINARIA. Tesi di Dottorato , Università degli studi di Ferrara.

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    Abstract

    The doctoral thesis addresses the issue of relations between ordinary legislation and referendum, following the decision of the people. It is an analysis of the different dynamics that characterize the complex relationship between parliamentary legislator and popular legislator, with regard to their "sovereignty." The subject of investigation, in particular, focuses on the effect of legal conditioning of the legislature following the direct expression of the people in referendums. We started from the notion that, although the principle of parallelism between the referendum and the ordinary law would exclude any mutual constraint, on the contrary the principles under articles. 1 and 75 of the Constitution could be used to support the opposite hypothesis. The choice of the job structure and content selection was then made so that it can synthesize all the elements necessary to verify if this constraint has the right to exist in our constitutional order. In particular, the thesis has begun with a referendum’s historical analysis, with a focus on the referendum's ability to affect the political system. Going through the work of the Constituent Assembly, from Mortati’s proposal until the current wording of art. 75 of the Constitution, outlining referendum’s complex process, specifically identifying the referendum role respect to the form of government. Indeed, faced with the insufficiency of a purely theoretical reconstruction of this ratio due to sparse data rules (both ordinary and constitutional), we opted for a different approach, aimed to study the practical modalities of referendum’s actuation. And so a protean nature institution was "discovered" that has managed to become an element of political debate, sometimes taking on the (false) appearance of a true antagonist of the parliamentary system. From the political point of view, therefore, it is clear how the referendum has its place in the form of government, but this consideration was not sufficient to settle the issue concerning the possible legal effects of a popular consultation. Only a reading of the referendums through the lens of the principle of sovereignty under art. 1 of the Constitution has been opened up prospects that make the referendum’s effects hardly compressible in the mere repeal. Considering referendum as an instrument of expression of popular sovereignty, it determines the need for the outcome of the consultation to be granted. Therefore, it is the encounter between the art. 75 and art 1 of the Constitution that seems to suggest the possibility of theorizing a bond not only political, but legal, paid by the legislator who wishes to intervene on a matter affected by a referendum vote. The second part relates to the old "betrayal" referendums (socalled "test cases”), cases in which following a referendum, the legislature has subsequently intervened violating the referendum outcome and summing, sometimes only in part, the legislation deleted by popular vote. The conduct of the legislature, analyzed in different contexts in which you could easily find an excess over the referendum result, has had as a constant: the method of referendum’s bond violation. A circumstance which certainly showed how, at least at the political level, the legislature felt a sort of responsibility in putting the referendum’s results to nothingness. The last part of the work is devoted to the study of the bond referendum hypothesis. Despite the placement, is the central part of this thesis, in which you try a reconstruction under different profiles of the relationship between referendum and ordinary law, by analyzing the various problems that right now prevent its solution in the sense of the existence of a referendary bond of legal type. It was analyzed, at first, the positive data, to understand if at legal level exists some conditions to support a legal constraint that limits the legislature following referendum expression on a particular subject. Also Constitutional Court is aware of these issues and its judjements were involved in my research. About the analysis of the doctrine, we focus in particular on the theory that admits the existence of a legal referendum’s bond, addressing some problematic aspects. In particular, it was initially approached one of the most important problems, the one related to the duration of the bond, starting from the belief that one can not imagine an endless ban. None of the solutions seemed satisfying, but it certainly can be taken in condideration the right of the electorate to a rethinking of legislation voted in a referendum. Another problem to solve was the one about the "guardian" of the referendum’s bond. Imagining that this role can be covered by the Constitutional Court, you should accept that it will also use political arguments to undo a law that violates the bond referendum. Opting instead for the President (through the re-send power and Parliament dissolution power), there would not be some solution, since it is strongly linked to mostly political considerations. Another issue raised was the one concerning the referendum question interpretation (for the purpose of identifying the exact scope of the bond), with particular reference to the role of the promoter and to the possible introduction of a motivation that can eliminate any ambiguities related to an investigation of the subjective intentions of the owners of the initiative referendum. Hence also some remarks on the need to ensure the authenticity of the vote and, therefore, in this sense the importance of the referendum campaign. The conclusion of the investigation has partially disproved the initial thesis: despite having identified several factors that can certainly support the idea of a referendum bond, does not seem possible to deduce from the current regulatory system a rule that limits the legislative function of all the times that there were a referendum vote.

    Tipologia del documento:Tesi di Dottorato (Tesi di Dottorato)
    Data:5 Aprile 2012
    Relatore:Brunelli, Giuditta
    Coordinatore ciclo:Pugiotto, Andrea
    Istituzione:Università degli studi di Ferrara
    Dottorato:XXIV Anno 2009 > DIRITTO COSTITUZIONALE
    Struttura:Dipartimento > Scienze giuridiche
    Soggetti:Area 12 - Scienze giuridiche > IUS/08 Diritto costituzionale
    Parole chiave:referendum abrogativo, vincolo referendario
    Depositato il:22 Feb 2013 10:14

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