Carlo Fusaro

carlo.fusaro@unifi.it

In English

The Constitutional Reform: a Summary (2005)

The main changes that might be introduced into the Italian system by the constitutional reform voted by the Chamber of deputies: a summary

 

 

  1. Article 138 It. Const provides that any constitutional amendment must be adopted  by both Houses of the Italian Parliament (the Chamber of Deputies and the Senate of the Republic) twice with an interval between the votes of not less than three months. An absolute majority is required. Afterwards such acts might be submitted to popular referendum if a request is made by (a) one fifth of the members of either Chamber or (b) by 500.000 citizens. The law shall enter into force only if approved buy a majority of valid votes.

 

  1. The proposed revision of Part II of the Italian Constitution (only Part II, because neither the Fundamental Principles or Part I – Rights and Duties of Citizens are to be amended), see note 1,  has been passed by the Senate in March 2004 and by the Chamber in October 2004 with major changes. This means that for the time being only one of the four readings has been completed. If the Senate shall change the text adopted by the Chamber (which is very likely to be the case) the procedure will start over again, because all laws must be adopted in the same text by both Chambers (this is exactly one of the features of the Italian Constitution that the project would try to modify). Therefore it must be emphasized that the outcome of the reform is very uncertain both in relation to its content and to the if and when of it.

 

  1. During the two parliamentary readings (Senate, Chamber) the text submitted by the Berlusconi Government has been amended and also enlarged in order to cope with matters not tackled by it in its original draft. In fact, the first draft proposed amendments concerning 28 articles of Part II Italian Constitution; the one shortly described here concerns 43 articles of Part II (which includes 80 articles altogether).

 

  1. The proposed revision of Part II It. Const.  must be evaluated within the frame of (a) the post World War II Italian constitutional history and expecially (b) within the frame of the most recent previous revisions (constitutional Acts of 1999 and 2001). The Italian Constitution of 1948 has been amended 13 times up to now; but only 4 amendment have been adopted from 1948 through 1990, and 9 thereafter (1991-2003). It is well known that the Italian political institutions have gone through major changes in the early Nineties (so-called transition). Furthermore complete revisions of the Constitution have been officially attempted by summoning no less than three ad hoc parliamentary committees (in 1983-1985, 1992-1994 and 1997-1998), with no immediate outcome. However several of the proposals submitted by the last of these special committees (the so-called D’Alema Commission by the name of the DS leader who chaired it) have been adopted afterwards. In particular Title V of Part II (through the mentioned constitutional acts of 1999 and 2001) has been thoroughly amended strongly enhancing the powers of the Regional Governments, but also leaving some untackled issues and some new problems in the process.

 

  1. Finally it must be taken into consideration the fact that the major 2001 revision of Title V of the Constitution just mentioned - for the first time in the Italian constitutional history - has been passed by a tight majority of 4 votes in the Chamber with the opposition (presently in power) voting against: a major breach in Italian previously bipartisan customs in constitutional matters.

 

  1. What has been summarized in points 4. and 5. explains why the Berlusconi Government has felt free to introduce a second  major not bipartisan revision of Part II of the Constitution: it is meant to (a)complete the political and institutional transition which had began in the Nineties through the electoral reforms of 1993, 1995 and 1999; (b) get rid of the present bicameral Parliament regarded as outdated and unefficient by most scholars (as the two Chambers basically share the same composition and powers); (c) tackle some faults of the 2001 revision and other problems left unsolved by it.

 

  1. All this being said, here is a list of the major changes that the Act adopted by the Senate in February and by the Chamber in October (with relevant changes) would bring about if it would ever enter into force:

 

a)     new Parliament; a Chamber of deputies composed by 518 instead of 630 members + 3 lifetime deputies designated by the President of the Republic; a Federal Senate composed by 252 instead of 315, elected by the people of each Region the same day each Region elects its Regional Assembly and President;  40 representatives of the regional institutions would take part to the Federal Senate activities (with no voting powers);

b)     the Chamber only would have the power to pass a no-confidence vote against the Government and only the Chamber could be dissolved;

c)      legislative powers would be shared by the two Chambers as follows: (i) all Acts on State exclusive matters (as laid down by art. 117.2 Const.) would be assigned to the Chamber (with the Senate sharing a limited power to submit amendments); (ii) all Acts on State-Regions concurring matters (as laid down by art. 117.3 Const.: note that the Italian concurring legislation is different than the German konkurrierende Gesetzgebung!) would be assigned to the Federal Senate (with the Chamber sharing limited amendment power); (iii) a set of specific matters would remain bi-cameral. The Government would have a limited power to obtain that an Act in the area of prevailing competence of the Senate is turned to the Chamber for (majoritarian) final decision;

d)     the present President of the Council of ministers would become a stronger Prime minister: he/she would be nearly directly elected (as the President would be bound to nominate Prime minister the leader of the majority coalition which would have won the elections possibly with the name of the candidate Prime minister on the ballot), he/she would have to submit his/her program to the sole Chamber, he/she would have the power to nominate and dismiss all the ministers (power which the present Italian President of the council doesn’t hold), he/she could only be forced to resign if and when its own majority so asks by passing a sort of konstructives Misstrauensvotum, he/she could ask the President of the Republic to dissolve the Chamber (as long as his/her majority agrees and doesn’t substitute him/her);

e)     both the Government and the opposition’s powers in Parliament would be slightly strenghtened;

f)        the President of the Republic would basically keep the same powers he has now but he/she would be more clearly limited in the exercise of its more political powers (the designation of the President of the Council and the dissolution of Parliament: in exercising these powers the President would have much less leverage than today)

g)     title V of the Constitution as revised by the Center-left coalition in 2001 would be amended in several points. Mainly, it can be said that (i) several concurring matters would re-centralizedwhile (ii) some (health, education but not most of the programs, regional administrative police) would be devolved to the exclusive competence of the Regions. On the other side (iii) under specifc conditions the central institutions would be recognized the power to overrule and cancel regional laws regarded in contrast to the national interest;

h)      local bodies (Gemeinden und Bezirken) would be entilted to direct access to the Constitutional court against both Regional and State laws;

i)        the Constitutional Court (now composed of 5 members designated by the President, 5 elected by administrative and ordinary magistrates, 5 elected by the Parliament) would still be composed by 15 members (but only 4 by each President and magistrates, 3 elected by the Chamber and 4 by the Federal Senate);

j)        finally, according to the new art. 138 on constitutional amendments, a popular referendum could always be requested (presently if a constitutional act is passed by a 2/3 majority no referendum is allowed).

 

  1. The opposition has already announced that in case this Act is passed, it will request the popular referendum. Academics have mostly been critical of the project. In fact it is true that it has several minor technical flaws. However harshest criticism is basically prompted by political bias. By no means the project diminuishes the democratic guarantees and it would only provide for a limited strenghtening of the executive which in Italy has been extraordinarily weak if compared to those of countries like Germany or Spain or the United Kingdom (for instance the Italian President of the Council doesn’t share some of the main powers of the German Chancellor: no power to detemine the Richtlinien of his/her Cabinet, no power to dismiss and change ministers, no power to determine or at least substantially influence the dissolution of Parliament). The changes to title V, tuning up the 2001 revision without subverting it, would mostly be for the best. The true potential flaw concerns the Federal Senate: a) it could turn to be another assembly in which party allegiance might prevail over the Regional interests which should be represented within it and by it; b) its legislative powers could prove to be too extensive and hamper the ability of the Government to implement its program. It must be added that the implementation of the reform could take as long as 10 more years according to the calendar laid down by the act istelf. (On the other side everyone knows how difficult it is - under ordinary conditions – for any body, in our case the Senate – to limit or only change its own powers and role! This explains why many scholars propose to change the Italian Senate in a sort of Bundesrat, with no success among politicians of all sides…).