appunti esame public law, Prof Lupo

Historical background

Albertine statute

The real origin of the Italian country was the kingdom of Sardinia. The constitution of this Kingdom of Italy was the one of the Kingdom of Sardinia—the Albertine Statute. It was short, flexible, and octroyée.

The Kingdom of Sardinia, step by step, conquered other parts of the country starting from Milan (1859) and then the rest of the South in 1861 with the Expedition of One Thousand (official birthday of the unified Italian Kingdom).

The government as an institution was not mentioned at all, it only mentioned the king and its ministers as the representatives of the executive power. No idea of the government as a collective body. The Albertine Statutes expressed the idea of the Liberal minimal state (liberal state in the sense that there is a limit to the sovereign power but such limit is small and vague), establishing a parliament (a quasi-parliamentary form of government, really limited representativeness) and recognizing some rights (negative).

The liberal state established by the Albertine Statutes collapsed through time from liberal to democratic. Universal suffrage was a crucial element of crises: introduction of masses into politics, party machine as an element of connection.

Fact: 1919—when proportional representation was introduced and the suffrage was enlarged, opening to Catholics and socialist parties, it was harder to manage the state and gain the majority to govern. Chaos and collapse of the liberal state (monoclass).

Fascist parenthesis

Political instability has been one of the main causes of the rise of the Fascist Movement, which took the power legally in 1922. Mussolini was appointed PM following the formalities of the AS.

No constitution was adopted during the fascist period, but AS formally remained in force (if emptied of its meaning) for all the duration of fascist domination (1922-1943), with no modification. Despite the huge modification to the institutional assets: closure of the CoD, modification of electoral law (one-party system).

After fascism

In 1943, the collapse of the fascist regime occurred (fall of Mussolini through a decision of the Great Council of Fascism on July 25). The Statuto was adopted again in its full form. From 1943 to 1945, Italy was caught in a civil war. From a constitutional point of view, a discontinuity has to be traced in the legal order during the fascist regime and later.

Two legislative provisions had been adopted to follow this aim: 1. promise to institute a Constituent Assembly (issued with the treaty of Salerno 1944) 2. 1946—institutional referendum (monarchy vs republic).

In 1948, the Constitution of the Italian Republic was created on December 22, 1947, and went into force on January 1, 1948—very different from the Statuto. It mirrors a totally different form of state, a republic, and it is long, rigid, very different in content.

The Italian Constitution is the result of a compromise between liberals, Marxists, and Christian-democrats. The Marxist parties were not involved in ordinary politics but they were involved in politics regarding the Constitution, expressing a really strong anti-fascist purpose.

Electoral laws

The electoral system—how votes are transformed into parliamentary seats—is crucial.

• 1848-1882: Right to vote given to 2% of the male population (then 7%).
• 1912: Universal suffrage; all adult males over 30 were given the right to vote (23%).
• Jan 1945: All adult males and women over 21 were given the right to vote (1946, 1st free elections).
• 1993: Right to vote in local and European elections extended to European citizens residing in a different member state.
• 2000-2001: Constitutional amendments acknowledging the expatriate vote in general elections and referendums.

Electoral systems

Electoral systems for general elections: Italian Kingdom 1848-1943

• 1848-1918 (French model): Single-member constituencies, top-two runoff vote if the most voted in the first round did not get 50% of the votes (representing 33% of the eligible voters).
• A parenthesis in 1882-1890: Multi-member constituencies, then back to the previous system (with some modifications).
• 1919: Proportional system.
• 1923: "Legge Acerbo", 2/3 of the seats to the most voted list (if it got 25% of the votes).
• 1928: Yes/no vote to the single list presented by the National Fascist Party.
• 1939: Abolition of the Chamber of deputies. Establishment of the unelected "Camera dei fasci e delle corporazioni".

1948-1993: The Italian Constitution does not provide any guide to an electoral system—does not specify which electoral system should be adopted.

The first electoral system to be adopted was the proportional one (1948-1993). It was very well fit to represent all political parties, given that the electoral law had been written by the parties. Afterwards, they were free to decide how to support the government, seen as a very fair system to the distribution of the votes.

1948-1991: PR with multiple preference votes. Exception in 1953: 65% of the seats of the most voted list reach 50.01% votes (majority bonus failed for less than 55,000 votes out of 28 million).

Referendum 1991: Removing the possibility of multiple preferential votes was a way to ensure a higher freedom for the voters.

Referendum 1993 on the electoral law of the Senate (from PR to a mixed system).

1993-2005: Mattarellum

An electoral law written by the people (two previous abrogative referenda): a mainly majoritarian electoral law, called ‘Mattarellum’ (1993-2005): three-quarters of seats assigned according to the first-past-the-post system, one-quarter according to the proportional system. The territory was divided into single-member constituencies, aimed at ensuring stability.

2005-2013: Porcellum

2005: Legge Calderoli—important, because repealing Mattarellum—the chambers of deputies: the coalition of lists who got even one vote more than the other have the right to have 55% of the seats (so 340). Very disproportional allocation of seats. The senate: the majority was assigned on a regional basis.

Porcellum: An electoral law written by the (center-right) parliamentary majority, a majority bonus system, proportional system, but majority assuring. It was enforced until 2013 with a major intervention of the constitutional court that declared important parts of the electoral law as unconstitutional. Judgment no. 1/2014: (electoral law made by Courts).

• The majority bonus with no minimum threshold: that it excessively limits the representative function of the Chamber of Deputies, altering the composition of the democratic representative bodies.
• It didn’t forbid multiple candidatures, the same person could stand as a candidate in all the constituencies and choose where to be elected, depriving ‘voters of any ability to choose their own representatives, which is left entirely to the parties’ and thus constraining ‘the freedom of choice of voters’.
• The majority within the Senate is the chance result of the sum total of regional bonuses, which may end up overturning the result obtained by the lists or coalitions of lists on the national level, favoring the formation of disparate parliamentary majorities in the two Houses of Parliament (against the majority prize in each region for the most voted coalition).

Limitation to the judgment’s effect: the decision will only “take effect during the next general election." The fundamental principle in this case is the continuity of the State.

2014: Italicum

An electoral law never applied: Italicum—a new two-round system with a majority bonus was approved by the center-left parliamentary majority (Renzi) for the election of the Chamber of Deputies, the so-called ‘Italicum’: law no. 52/2015. The majority bonus was awarded to the list obtaining 40% of the votes or—in case no list reached this threshold—to the winner of a run-off held between the top two lists after a second electoral ballot.

In strict coordination with the constitutional reform 2016 on the Italian perfect bicameralism, indeed, not applicable till 1 July 2016 (depending on the result of the referendum).

Judgment No. 35/2017: The Constitutional Court heard the case even if the law no. 52/2015 had never been applied. Italicum—two points have been annulled:

• The majority bonus, assigned after the second ballot, and the possibility for a candidate to compete in several constituencies and to subsequently choose the constituency where to be elected.

Core point of the judgment, on the run-off vote: A list can access the second round on the basis of a very limited consensus obtained in the first round, getting more than double the seats it would have obtained based on the votes of the first round. The same effects already censured by the Court in judgment no. 1/2014.

Need to balance between the necessity of stability and the right to representation.

Final statement: Court cannot avoid underlining that the outcome of the referendum of 4 December 2016 confirmed a constitutional arrangement based on the parity of place and functions of the two elective Houses—not requiring to introduce the same electoral systems for the two branches of the Parliament, but requires that the systems adopted, although different, do not impede, at the outcome of the elections, the formation of homogeneous parliamentary majorities (for the well functioning of the government).

2017: Rosatellum

Law no. 165/2017 (law actually in force: Rosatellum)—Mixed system, 63% majoritarian / 37% proportional.

• Coalitions (for single-member constituencies) or single lists.
• Electoral thresholds: 10% for coalitions; 3% for lists (but 1% to have their votes useful for the coalition).
• Up to 5 (plus 1) pluricandidatures.
• Max 60% candidates of the same sex.

Regional and local electoral systems—since 2001, each region may approve its own electoral law respecting some constitutional principles (if the president is directly elected, simul stabunt simul cadent). State competence to regulate local elections, differentiation between:

1. Municipalities with more than 15,000 inhabitants.
2. Smaller municipalities, Provinces’ bodies are no longer elected.

Both in regional elections and in bigger municipalities, there is a majority bonus: an Italian model?

Referenda

Referendums: types and effects

At the state level, two different hypotheses:

• Constitutional referendum: within the procedure for constitutional amendment. Three cases: 2001, 2006, and 2016. Nature of the Constitutional Referendum: Oppositional or confirmative (proponents/quorums). Held on a law that is NOT in force.
• It Const. Art. 138: Laws amending the Constitution shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House in the second voting. Said laws are submitted to a popular referendum when, within three months of their publication, such request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional Councils. The law submitted to referendum shall not be promulgated if not approved by a majority of valid votes. A referendum shall not be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members.
• Abrogative referendum (Art. 75 Const.): to repeal a piece of legislation (or a part). Many cases since 1970 (Divorce, Abortion, Electoral Laws, Water management). Held on a law that IS in force.
• It. Const. Art. 75: A general referendum may be held to repeal, in whole or in part, a law or a measure having the force of law, when so requested by five hundred thousand voters or five Regional Councils. No referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty. Any citizen entitled to vote for the Chamber of deputies has the right to vote in a referendum. The referendum shall be considered to have been carried if the majority of those eligible has voted and a majority of valid votes has been achieved.

Important difference: presence of the QUORUM (no quorum in constitutional ref.)

Abrogative referendum procedure

• Referendum proposals filed by (either):
• 500,000 voters: i.e., Committee of Promoters 10 citizens registered on electoral laws of the Chamber of Deputies + 500,000 signatures collected in 3 months.
• 5 Regions: deliberation of 5 Regional Councils.

Legality review by the Central office for Referendum of the Court of Cassation:

• Yardstick: L. 352/1970
• Procedural regularity:
• Authenticity and number of signatures
• Validity of Regional Assemblies deliberations
• Object of the request
• Unification of request on same or similar matter

Admissibility review by the Constitutional Court:

• Limitations provided by Art. 75.2 It. Const.
• Law on taxes, budget, amnesty or pardon, or ratifying international treaties
• Wider interpretation of Art. 75.2 limitations. Further limits—the question asked to the voters has to be homogeneous, clear, and univocal: it cannot address different matters at the same time. “It is clear that a blocked vote, on a multiple group of issues, impossible to unify, infringes the democratic principle, de facto limiting the same right to vote (and violating articles 1 and 48 Const.)” (judgment no. 16/1978).
• Ordinary laws, but constitutionally essential, etc.
• “Manipulative” referendums: repeal of mere words with the aim of radically changing the meaning of the law.

Then: call for referendum (decree of the President of the Republic Art. 87 Const.)

Outcomes:

• More “yes”/positive outcome: law repealed
• More “no”/negative outcome: referendum rejected (no similar proposal for 5 years)
• Less than 50%+1 of the voters going to the polls: referendum not valid (rejected)

Conclusion: role of case law 1970

The case-law of the Constitutional Court, issued since the 1970s, in order to find admissibility, established a series of principles and guidelines that a proposal for an abrogative referendum needs to follow. The basic assumption is that the referendum is an instrument of direct democracy that cannot be used in a representative democracy to obtain a popular vote of confidence on the general political choices of the promoters of the referendum.

Although not being logically impeccable, these implicit limitations managed to avoid a misuse of the abrogative referendum, preventing its natural plebiscitarian degeneration and keeping the primacy of representative democracy.

A singular case

European Integration Advisory Referendum (only case of CONSULTATIVE ref.)

An ad-hoc referendum on a European Constitution-making mandate for the European Parliament. Not legally binding (overwhelming YES).

Regional and local referenda

The President of the Republic

The Italian Constitution dedicates Title II to the President of the Republic, immediately following Title I concerning Parliament. The first constitutional organ to be dealt with is the Parliament and not the President. It was clear that the new Head of State (after Monarchy) had to fall outside of the legislative and judicial powers and which remained outside of the political power circuit (kind of detachment from the policy but NOT so much as the queen).

The constitutional position of the President of the Republic does not clearly emerge from a reading of the Constitution.

Election of the President of the Republic

• The PoR is elected by the two Houses in joint session, plus the Regional...