What is happening now in the Region? Everyone is wondering, in Sardinia and beyond, after the order of dismissal of President Alessandra Todde issued by the regional electoral guarantee college. The answer is not univocal. And everyone knows this too. Jurists, lawyers, consultants and para-consultants: everyone has their say. And there are also those who spread fake news that (further) destabilize the climate.
To try to understand something, we need to refer to the legislative passages, the line dictated by the Constitutional Court and any precedents.
The law applied in the Todde case is 515 of 1993 (which dictates the rules for the Chamber and the Senate) which is also referred to by 1 of 1994, the Sardinian law for the Regional Council.
Can Todde challenge the decision of the Board? The answer is yes: this was established by the Constitutional Court (ruling 387/1996) which was called to rule in the context of the trial concerning the sanction issued against Luigi Campagna (elected to the Chamber) for not having presented the financial report. Some key points emerged from the verdict: first of all, the decision of the electoral board had been classified as administrative (and not jurisdictional). Then the possibility of appeal was recognized: then one could go before the magistrate, now it is not clear whether the jurisdiction is of the TAR or of the ordinary judge (Todde will appeal to both). The Court wrote: the forfeiture " must have been declared 'definitively' (and can be considered as such only after the exhaustion of all remedies granted by law to the interested party against the decision of the Guarantee Board) (...) and in any case, the forfeiture follows directly, not from such a definitive decision, but from the resolution of the Chamber of membership, as expressly provided for in the aforementioned seventh paragraph, in specific application of Article 66 of the Constitution".
The Consulta speaks of the Chamber, because that is where the ordinance was addressed in that case. In the Todde case, in application of Sardinian law, the provision was notified to the President of the Regional Council.
Can the Regional Council, at this point, decide to ignore and disavow the order of forfeiture? To answer, we must refer, for extensive application, to Article 66 of the Constitution, recalled by the Consulta: «Each Chamber judges the qualifications for admission of its members and the subsequent causes of ineligibility and incompatibility». This also applies to the Regional Council, «which pronounces the forfeiture in accordance with its own regulation».
And what does the Regional Council regulation say? The relevant articles are 16 and 17. The ordinance must be handled by the Election Committee, composed of regional councilors: "For the causes of ineligibility and incompatibility that arise, the Committee reports to the Council within ninety days from the moment it becomes aware of them."
But what does the Election Committee report? There are those who claim it can conduct hearings and conduct a sort of inspection work on the validity of the order of the electoral guarantee board. However, it worked on the documents of the electoral report (judged, in the end, "apparent"), not on opinions. The limit of reviewability appears quite stringent.
However, the Council will have to have its say. But it's not over. Because there is the pronouncement of the Regional Council, which expresses itself by secret ballot. As has already happened. The precedent discovered by the offices of the building on Via Roma (more similar in fact than identical) dates back to January 2020. On the agenda was the "Validation of the election of regional councilors" on the basis of a "letter" sent by the Election Committee: the validation of all regional councilors was proposed "except that relating to councilor Gianluigi Piano since he received, on May 3, 2019, protocol 3919, a formal act of complaint/warning due to an alleged cause of ineligibility that requires further investigation". So there was the risk of forfeiture. So here is the idea " to propose to the Council to wait for the final outcome of the appeal pending in the jurisdictional seat , that is, the final judgment of the ruling of the Judicial Authority on the same appeal, the outcome of which will be followed by the acknowledgement by the Elections Committee and the Regional Council and the related formalities of the case". In short: the Chamber decided - by secret ballot - to wait for the judges and, in the meantime, to continue working. Of course, at the time there was a regional councilor who was not a president. There was no risk of the collapse of the entire Sardinian legislative assembly, as there is now. And this too could be the subject of an appeal to the Constitutional Court.
One thing is certain: there is no certainty about the timing.
Enrico Fresu