External Controls on Due Legislative Process. The President of the Republic and the Constitutional Court
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The essay examines the performance of controls on due legislative process by the President of the Republic and by the Constitutional Court throughout republican history. The Author identifies reasons why these controls are not very incisive and underlines the importance of sanctioning the lack of compliance with the constitutional rules on legal sources. The Constitutional Court has too often hesitated when facing the possibility of an annulment of norms with a valuable content, thus making the formal defect appear as a minor defect. To reverse this trend, the Author argues for the use of the power to modulate the temporal effects of unconstitutionality, which would allow to sanction violations of constitutional rules on legislative process beyond the cases of undeniable lack of prerequisites of the act and of evident infringement of parliamentary prerogatives. Such a change would also give the President of the Republic more space in the exercise of his powers of interposition in legislative production, a change which would be in line with a constitutional case-law ready to «not-forgive» violations of the constitutional rules on legal sources. The hoped-for convergence between these controls could then constitute an effective tool in the fight against parliamentary practices that compromise the good course of the assembly work, such as violations of the contradictory rule, the dialogue principle, and even of the actual knowledge of the legislative text.