The Constitution of Italy

A Contextual Analysis

Marta Cartabia, Nicola Lupo

• Editorial: Hart Publishing
• Año: 2022
• ISBN:
  9781509905737
• Edición: 1
• Categoría: Jura
• Categoría: Rechtstheorie & -praxis

This book introduces the reader to the Italian Constitution, which entered into force on 1 January 1948, and examines whether it has successfully managed the political and legal challenges that have occurred since its inception, and fulfilled the three main functions of a Constitution: maintaining a community, protecting the fundamental rights of citizens and ensuring the separation of powers.

1

The Making of the Italian Constitution and its Evolution

History – Albertine Statute – Fascist Regime – Political Parties – Flexible Constitution – Rigid Constitution – Constitutional Amendments – Supreme Principles – ‘Bribesville’ – Majoritarian Democracy

I.INTRODUCTION

This chapter examines the origins of the Italian Constitution of 1947. Starting at the dawn of the Italian unification process (Risorgimento) with the pre-Republican period, which was ushered in by the conceding in 1848 of the Albertine Statute (Statuto Albertino) in the Kingdom of Sardinia and Piedmont, it continues through the events of the Fascist regime (1922–1943) and the Second World War. It then turns to the founding period and the subsequent constitutional history of the Italian Republic, which has been deeply marked by the fracture that took place in the political system in 1993, involving the fall of all the anti-fascist political parties – the ‘fathers of the Constitution’.

In particular, it addresses Italy’s transition from a modern liberal state to a contemporary constitutional democracy, and accounts for the problems that have arisen during this process. A brief discussion of the Italian Republic’s constitutional history is provided, including a comparison between the Albertine Statute and the Republican Constitution. In order to fully understand the Italian Constitution, the effects of the Fascist regime must be taken into account: after two world wars and 20 years of fascism, Italian leaders were faced with the reconstruction and reunification of a devastated country. Due to its relationship with the past, the Italian Constitution is undeniably a ‘never-again’ constitution: renouncing the previous regime, it is based on principles that provide a safeguard against a totalitarian state. Nevertheless, in consideration for the future of the polity, the features of the new Republic were open and, in a sense, ‘undecided’. The Constitution is imbued with anti-fascist principles; yet, the construction of the new polity was successful because of its inclusive, dialogical and incremental approach to constitutional change. The Italian Republic was not founded upon a single political idea, but was the result of a coming together of Catholic, Marxist and liberal ideologies. In a joint reaction to the past, these were united by an anti-fascist commitment, but had no shared vision of the future. The Constitution, firmly grounded on this commitment, was intended to prevent a relapse into the abuses of the totalitarian regime. Yet, the common will to adopt an anti-fascist constitution was not enough when it came to determining the features of the new forms of the State and the Government.¹

This origin had consequences for the implementation of the new regime. First, the mise en oeuvre of the new constitutional architecture was neither immediate nor swift, and was certainly not complete. Moreover, this delayed implementation affected some institutions that were supposed to play a crucial role in the constitutional system, including the Constitutional Court and the Regions, and the instrument of the popular referendum. Second, the new constitutional order soon began to experience recurrent periods of crisis due to increasing political fragmentation and governmental instability: in the 1980s, calls for constitutional reform began to be widely heard.

Italy has undergone a number of political crises, reaching an acute phase in the early 1990s with a massive anticorruption investigation that implicated the vast majority of political leaders – coming to the point where the period is commonly, and yet inaccurately, referred to as the beginning of the ‘Second Republic’. It was an inordinately difficult time: for a number of historical reasons, all the political forces that had led the constituent process – notably the Christian Democratic Party, the Socialist Party and the Communist Party – either disappeared or were transformed into something different, and a challenging new transition began.

Prompted by this political instability, the perennially incomplete debate on constitutional reform has over the past 40 years produced a number of drafts, many of which were ultimately not approved by Parliament or were subsequently rejected by the people in referendums. Nonetheless, in 1993 a new political phase began, bringing a series of electoral reforms and some major transformations of the political system.

An overview of the constitutional amendments that have been approved since 1948 is provided here, along with a discussion of the four constitutional referendums: two with a positive outcome (2001 and 2020), and two with a negative result (2006, Berlusconi government, and 2016, Renzi government). Specific attention is given to the rigid character of the Italian Constitution and its amendment procedure, which mirror the main features of the process that led to its approval, as well as the explicit limits to constitutional amendments.

II.THE ALBERTINE STATUTE

The first Constitution of Italy was not intended to apply to the entire Italian peninsula, which at that time was divided into as many as 10 States. It was enacted in 1848, well before the unification of Italy in 1861. The unification was a long process that brought together a people who, in spite of having shared a common classical culture since the end of the Roman Empire, used a variety of dissimilar languages and dialects (among which Italian as a spoken language was used by less than 10 per cent of the population)² and had been ruled by different royal families and governments (including the Catholic Church, in the central part of the peninsula) for many centuries.

The Albertine Statute was conceded on 4 March 1848 by King Charles Albert of Savoy, referring exclusively to the Kingdom of Sardinia and Piedmont. This concession was precipitated by the revolutionary riots that were taking place that year all over Europe, and clearly correlated with the events occurring at the same time in Paris. Of all the charters enacted in the Italian peninsula in 1848–49, the Albertine Statute was the only one to escape the repression that came to pass in all the other States after 1849. This made it possible for the Kingdom of Sardinia and Piedmont to lead the Risorgimento. In 1861 the unification process, led by the then King of Savoy (Victor Emmanuel II, first son of Charles Albert) and his Prime Minister (Camillo Benso, Count of Cavour), was solidified and the Albertine Statute became the fundamental charter of the Kingdom of Italy. Another decade had to pass, however, before Rome became part of the Kingdom and its new capital.

This document was not given the title of ‘constitution’, as the term evoked the traumatic events of the French Revolution and those taking place contemporaneously in Paris. ‘Statute’ was a more neutral term that recalled the Italian municipal tradition.³

In all respects except in name, the Albertine Statute was a classic example of the constitution of a liberal modern state. It was formally conceded by the King ‘with regal loyalty and fatherly love’, and substantively drafted by a Royal Council (Consiglio di Conferenza), whose proceedings were held in French. Thus, the literature refers to the Statute as a charte octroyée – a ‘conceded charter’.⁴

The Albertine Statute declared itself ‘perpetual and irrevocable’. However, as it did not provide any special procedure for its own revision, it was soon deemed a ‘flexible’ constitution (ie not hierarchically superior to ordinary legislation).⁵ It was also a short constitution: it included a very limited bill of rights, and no social rights were declared. The protection of these constitutional rights was only assured by the Parliament, whose legislation was called upon to implement them and to define their scope.

The Albertine Statute remained in force for almost a century until 1944, when, at the end of the Fascist regime, the first provisional constitution, issued during the Second World War, launched a new constituent process. When Benito Mussolini took power in 1922, the Albertine Statute was still formally in force. It was gradually suspended, and it was ultimately recalled in 1943, by King Victor Emmanuel III (grandson of Victor Emmanuel II), who had for two decades accepted its suspension.⁶

In order to demonstrate the flexible nature of the Albertine Statute, it suffices here to refer to a couple of provisions that were later overridden by legislation and constitutional practice.

First, the Albertine Statute stated that the Executive power was vested in the King alone (Article 5), thereby creating, similarly to many constitutions conceded in continental Europe at the beginning of the nineteenth century, a so-called pure constitutional system. This means that the form of government was a ‘division of power system’. Nevertheless, soon after the Albertine Statute came into force, the Prime Minister’s autonomy and the influence of the elective Chamber of Deputies changed the form of government, which gradually evolved towards a quasi-parliamentary system.⁷ Similarly to what had happened a couple of centuries earlier in the evolution of the British form of government, the King stopped presiding over the Executive’s meetings, thereby granting a special role to the emerging figure of the Prime Minister and at the same time permitting the Executive to derive its legitimacy, first additionally, and then exclusively, from the (elected) Parliament.

Second, while the Albertine Statute forbade (Article 50) senators and deputies from receiving any monetary compensation, a lump sum, in the guise of a reimbursement, was in fact provided to them, by law no 655/1912.

Furthermore, neither the bearers of the right to vote nor the features of the electoral system were directly defined by the Albertine Statute, which assigned these fundamental choices to legislation (Articles 29 and 30). Indeed, both these matters changed significantly during the Statute’s rather long life. The right to vote was progressively extended, especially before the elections held in 1882, 1913 and 1919 (when universal male suffrage was experimented with for the first time). The electoral system was, for the most part, a two-round plurality system, with generally single-member constituencies. It was transformed into a proportional system after the First World War in order to acknowledge the role of the new mass political parties. In fact, the elections of 1919 ended up being victories for the Socialist Party (32 per cent of the votes) and the Popular Party (21 per cent of the votes), while a relative defeat was suffered by the Liberals, who up to that point had almost exclusively covered the representative spectrum, but subsequently remained fragmented in many local lists and never restructured as a mass political party.

In the years following the First World War, Italy’s young and fragile liberal State could not resist the impact of the popular masses and universal suffrage. The clash between the People’s, Fascist, Socialist and Communist Parties gave rise to the authoritarian, one-party regime led by Mussolini.

III.THE FASCIST REGIME, THE SECOND WORLD WAR AND THE TRANSITION TO THE REPUBLIC (1922–1945)

Mussolini originally came to power in October 1922 without overtly breaching any constitutional rules. He was appointed President of the Council of Ministers through procedures that, at least on the face of it, were not inconsistent with those required by the Albertine Statute, which had been followed for the purposes of establishing previous Italian Governments.

Once he had been appointed to that role, Mussolini gradually but steadily expanded his powers, systematically violating the fundamental rights, freedoms and procedural guarantees provided for by the Albertine Statute. Some have therefore called his reign a ‘dictatorship by stealth’.⁸

To summarise the main institutional steps on Mussolini’s path towards dictatorship – leaving aside the use of censorship, violence and, later on, the enactment of racial legislation – we can recall the creation of the Fascist ‘militia’ (in 1923); the adoption of electoral systems initially assigning (in 1923) two-thirds of the seats to the list that received the most votes and subsequently (in 1928) allowing a single list of candidates; the so-called leggi fascistissime (in 1925–26, shortly after the kidnapping and assassination of Giacomo Matteotti, a socialist member of Parliament), transforming the President of the Council into a Head of Government, allowing the Government to issue legislative acts and limiting the freedom of the press; the limitations on rights to meet and associate; the insertion into the State of the structures of the Fascist party, starting with the Gran Consiglio del Fascismo (created in 1922 and ‘constitutionalised’ in 1928); and, finally, the transformation of the Chamber of Deputies into the non-elective Chamber of Fasci and Corporations (in 1939).

The Fascist regime created new structures and bodies which, especially at the beginning, were conceived of as additions to the institutions of the liberal state. Indeed, the latter continued to exist, albeit substantially deprived of any political role. The Senate and the Monarchy, for instance, were never entirely suppressed, although their political influence was dramatically reduced. This formal persistence of some institutions of the liberal state, along with the pact made with the Catholic Church (via the signing of the Conciliation between the Vatican and the Fascist government in 1929), explains why the debate is unsettled as to whether the Fascist regime effectively achieved its goal of establishing a ‘totalitarian state’, or whether, despite its aspirations, it ‘only’ managed to set up an ‘authoritarian state’.⁹

However, the Albertine Statute had not been explicitly repealed, so formally speaking it was still in place after a 20 year long dictatorship. Therefore in 1943, it was possible for the King to dismiss the Mussolini Government when, in the midst of the Second World War, favourable political condition...