Riassunto esame Fundamental rights, Prof. Cossiri Angela Giuseppina, libro consigliato The Constitution of Italy. A Contextual Analysis, Cartabia Lupo

SPECIAL PROCEDURE

Instead of just one approval by each of the two chambers in the Parliament, it is necessary that the proposal is approved by both of them.

In this constitutional amendment procedure, the constitution requires two approvals by the branches of the parliament. Between the first and second approval in the same chamber, art.138 requires that at least three months between the two approvals have to pass.

Therefore, the draft must be first approved by the deputies, then the same is approved by the Senate. After three months from the first and the second approval of deputies and a second approval by the Senate.

This is the part of the process which is shared in the first and second path. What changes is the second step, the kind of majority required to approve the amendment. ⅔

In the first approval, the amendment requires a qualified majority (majority of each member of the chamber). The first hypothesis is faster because the qualified majority makes a consensus over the proposal similar to.

that was made by the constituent assembly. It doesn’t matter where the procedure starts. It could begin both in the Senate or Deputies’ Chamber.

Then the draft is promulgated by the Head of the State.

After three months from the amendment publishing in the Official Gazette, it enters into force.

-Second hypothesis: as well as the first one we have two approvals by each Chamber of the Parliament, and three months must pass.

While the first approval can pass through a simple majority, the majority of the voters, the second one must be passed by an absolute majority, higher than a half of the members of each Chamber.

This implies that only the majority within the Parliament, supporting the government, without the opposition.

An additional step is the possibility of calling the referendum.

The draft is first approved by the two branches with absolute majority.

Then the proposal is published in the gazette, but it is not intended to come into force, but only to present it to the

population.Within three months from this publication, minorities, who were against it in the Parliament, may challenge the proposal though a referendum.

These minorities are:

• 500.000 voters (minority in the country)
• 5 regional councils (territorial minority)
• ⅕ of a single branch of the Parliament (political minority)

This referendum is not confirmative. But it's made by minorities to call people to stop the procedure.

It is an appositive referendum. It doesn't require a quorum, the need to have an absolute majority of the voters.

The basic idea is that if the minorities are capable of convincing people of the unfairness or unjust nature of the proposal and at the same time the majority is unable to do the same in the opposite direction, it would mean that there is not an interest in it.

The referendum of 2nd March 1946 was an institutional referendum, the choice was between the Monarchy or the Republic.

Constitutional referendums can be called by the minorities to approve

constitutional amendments. If the yes wins, the head of the state confirms it and the promulgation in the gazette is undertaken. If the votes against it prevails, the process is interrupted.

US AMENDMENT PROCEDURE

The US procedure is way more complex. It is constituted by two steps:

Two are the main options concerning the first one: ⅔

1. The amendment is proposed by the congress with a (qualified) majority in both the House of Representatives and the Senate.
2. The amendment can be proposed by a convention of States, which is called by the Congress on the ⅔ application of the states.

Second step: RATIFICATION

Two are the options:

1. Legislatures in ¾ other qualified majority, of the State
2. Ratifying Convention in ¾ of the States

In the US, the procedure is so shaped because it is a federal State, which comprises different member states. It's hard to modify the constitution, almost impossible. Only 27 amendments have been made. The last one (concerning delays laws affecting

Congressional salary from taking effect until after the next election of representatives), passed in 1992 was reified after more than two hundred years.

OTHER EXAMPLES FROM OTHER PARTS OF THE WORLD.

2/3 of both the Bundesrat and the Bundestag (Portugal; Japan + referendum; Belgium•Germany:chambers are re-elected for the last approval) ⅔Germany( which is a federal state), the amendment’s approval requires the of voters’ majority of coming from both the Chambers of the Parliament:

• The Bundestag, representative elected by landers, the member states of Germany;
• The Bundesrat, a sort of House of Representatives, is composed of the representatives directly elected by the German people.

Sweden, Denmark: chambers are dissolved before the final approval•Norway, ⅗2 approval of former chambers, one of the new elected -•Greece:3/5, but for the most important amendments: 2/3 + approval by new chambers and•Spain:referendumreferendum (3/5 no referendum) this system has

been influenced by the concept of popular sovereignty, the idea of a rigid and stable constitution. The amendment is approved though simple ⅗ majority. If it reached a majority of referendum is not required. Not everything in the constitution can be modified. This leads us to the ETERNAL CLAUSE or non-amended parts of the constitution. They can be: - Explicit: expressed within the constitutional text - Implicit: unexpressed by the constitution, but defined by means of interpretation. In the Italian Constitution, the last art., art. 139, states: "The form of Republic shall not be a matter for constitutional amendment." This is an explicit eternal clause and the only one. This clause derives from an institutional referendum, held on 2nd June 1946. On that occasion, the decision was binding even on the constituent power. Later, scholars and the constitutional court offered a wider and more general interpretation of this provision. While in the monarchy, the king derives his legitimation from God,

In the Republic, the Head of the State is elected directly or indirectly by the population. If we focus on a substantial understanding, we can notice that the Art. 139 recalls also a very fundamental principle; the democratic one. Therefore, there is a connection between the first and the last provision. Indeed, Art. 1 states: Italy is a Democratic Republic, founded on work. Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution. This connection, created by the means of interpretation, does not limit itself to Art. 1. But if this formal state should be the one of democracy, this implies that other parts of the constitutions must be considered not amendable. These are those which defend the democratic nature of the state. The Constitutional Court Judgment No. 1146/1988 clearly stated that apart from Art. 1 and 139, there are supreme principles that cannot be abolished even by means of the amendment process. We don't have a specific

tool to identify a supreme principle: supreme principles that cannot be subverted or modified in their essential content, either by laws amending the Constitution, or by other constitutional laws even though not expressly mentioned among those principles not subject to the procedures of constitutional amendment, belong to the essence of the supreme values upon which the Italian Constitution is founded

However, there's not a specific tool to identify those supreme principles. Everything is to the extent of the constitutional court. therefore, it cannot be denied that this Court is competent to judge the compliance of laws amending the Constitution, or of other constitutional laws also with supreme principles of the constitutional legal order. Otherwise, it would lead to the absurd outcome of having a faulty and ineffective system of judicial review of the Constitution with respect to its most highly valued provisions

The process of judicial review

implies that there is a specialized body, the constitutional court, which reviews the constitutionality of legislation. Legislation was intended as ordinary legislation. In this case, the court is saying that it can review the constitutionality of constitutional amendment and laws that should be considered at the same level of constitution. This statement implies that there could be unconstitutional constitutional amendments, which are against the Supreme Principle of the constitution itself. In Italy we have never had a constitutional amendment which infringed a point of a supreme principle of the constitution. However, there are many examples coming from abroad. When a constitutional unconstitutional amendment is in force, the principle of rule of law is undermined. However, in Italy there has been a supreme principle applied against International law and EU law. With a couple of judgments, the const. court. recognized the Art. 24 as a supreme principle of the constitution and decided not to let

The international law to a specific case, even if the constitution provides that international customary law must be applied also in Italy. Moreover it was against a EU law that was somehow limiting the Italian recognition of the right to defense.

There is a specific distinction which distinguishes Italy from all other countries:

FORM OF THE STATE: understood as the relationship between the individuals in specific territory and the public authorities within that country, as well as, the values and principles of the state that inform the State action.

In the Italian state it tries to describe how the power is distributed FORM OF THE GOVERNMENT: among the main institutions of a State and relationships between them.

From the first viewpoint, Italy is a Republic, on the other perspective, the formal government of Italy is the parliamentary state.

These two concepts cannot be applied in other contexts, because usually this distinction is not so clear as in Italy.

THE DEMOCRATIC PRINCIPLE

Article 1:

Italy is a Democratic Republic, founded on work. Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution. Sovereignty: neither to the State (understood as constitution) nor to the Nation. This is an important change in respect to other modern constitutions. Previously to go beyond society, the idea was to create a figure, that one which would comprise in a single notion all the citizens of present, past and future of France, without dividing the society in classes. On the other hand, In the Italian system, sovereignty belongs to the people.

TOWARDS THE PLURALISTIC DEMOCRACY

King (e.g. France of Louis XIV) 'legibus solutus' → At the very beginning

1. Absolutist State: of this process, we find the absolutist state, where the king is the head of the state. The power was co