An Explainer on Italy’s Constitutional Amendments
Italy’s constitutional referendum is catalyzing the interest of journalists and other observers based in China, and has become one of the topic for discussion by the English language media (here, here, here and here). Chinese stakeholders and other concerned parties are wondering whether the proposed constitutional amendment will impact the future of the European Union, and how.
It is still too early to tell what will happen on December 4, that is whether voters will choose in favor of the proposed constitutional amendments. In any case, according to its Constitution Italy cannot convene a referendum on a law ratifying an international treaty, therefore fears of a sudden “Ital-exit” or of an impromptu withdrawal from the Euro are unfounded.
Yet, the factual points of the Constitutional Referendum may be worth considering, due to the well-known difficulties to access information produced in Italian – a language spoken only by a minority of persons. This post has been written with a Chinese audience in mind. Given the concerns about China-EU relations, and the role Italy’s referendum is playing in the projection of risk scenarios for the rest of the European Union, the following points about the constitutional referendum might be of interest to a foreign audience as well.
What will happen on December 4?
On Sunday, December 4, all Italian citizens aged over 18 will have a chance to express their vote on the proposed amendment to the Constitution. The question that will be presented to voters who live in Italy and to the Italian diaspora is:
Do you approve the text of the Constitutional Law concerning “Measures to overcome paritarian bicameralism, the reduction of the number of members to the Parliament, the containment of the costs of the functioning of institutions, the suppression of the National Council on Economy and Labor, and the revision of Section V, Part II of the Constitution”, which has been approved by the Parliament and published on the Official Gazette, n. 88, of April 15 2016?
This is one of the most complex amendments in the history of the Constitution. The full text of the amendments is 60 pages in length, while the comments on the text of the proposed amendments run for 318 pages. The main points of the amendment concern:
The political representation of the Nation
At the moment, the citizens of Italy are politically represented by a Parliament composed by a Chamber of Deputies, and by the Senate of the Republic. This institutional arrangement was adopted in 1948, to provide a set of checks and balances among the powers and institutions of the state. In fact, the Chamber of Deputies and the Senate share the power to make law, with the Senate enjoying the power to introduce legislative bills, and to veto legislation initiated by the Chamber of Deputies. The two organs are formally equal, and they share both the political guidance of the Nation and law-making powers.
The proposed Constitutional Amendment (art. 55) will eliminate the Senate’s function of political representation of the nation. In the future, this function may belong exclusively to the Chamber of Deputies. (art. 55, art. 94). Each Senator would be a representative not of the citizens of Italy, but of the members of the legislative assembly of his or her region. While the proposed amendment specifies that regional legislators elected to the Senate would not have an obligation to follow instructions from regional legislative assemblies, they would nonetheless represent the interest of regional legislatures as a whole.
Election and the composition of the Senate
The Senate is composed by 315 members, who remain in office five years, and are elected through direct universal suffrage by all Italian citizens aged over 25.
Under the proposed amendment, the Senate would no longer be elected by Italian citizens aged over 25, but by the Regional Councils, that is by the legislative assemblies of the regions of Italy. The Senate would be composed by 95 members, chosen by Regional Councils among mayors and delegates to the legislative assemblies,and by 5 honorary members chosen by the President of the Republic. Regional Councils would elect 21 senators chosen among mayors, and 74 Senators chosen among their members. Each regional legislative assembly would choose not less than two Senators. Not all regional legislative assemblies would be represented by the same number of Senators: legislative assemblies in more populous Regions would elect a greater number of mayors and regional legislative counselors as Senators, while those in the least populous Regions would elect fewer Senators.
The persons who would be elected as senators therefore may have to concurrently hold the office of mayor (or delegate to the local legislative assembly), and senator. In some cases, the law may limit concurrent appointments but, these cases would have to be defined and regulated by a parliamentary regulation to be enacted in the future (art. 63)
The indirect election of Senators would means that each member of the Senate would represent the will of the regional legislative assembly that has elected her or him, rather than the will of the citizens of the entire nation. The text of the proposed amendment does not yet specify how regional legislative assemblies would elect Senators. Article 57 of the proposed amendment states that the election of Senators will take place “coherent with the choice made by electors”. Presumably, this could mean that the party who wins at the regional elections would choose the senators among its delegates. Under the prevailing interpretation of article 57, and article which the electorate may either approve or reject on Sunday, regional counselors elected to the Senate may proportionally represent the composition of their councils. According to the amendment, however, both the Chamber of Deputies and the Senate will legislate on this matter in the future.
Finally, the age limit for the office of Senators is currently of 40 years of age. The proposed amendment would remove this limitation, allowing anyone who has reached the age of 18 to be elected as a Senator.
The powers of the Senate
Under the current version of article 70 of the Constitution, both the Chamber of Deputies and the Senate have the power to introduce a legislative bill:
Legislation may be introduced by the Government, by a Member of Parliament and by those entities and bodies so empowered by constitutional amendment law. The people may initiate legislation by proposing a bill drawn up in sections and signed by at least fifty-thousand voters.
Under the proposed amendment:
The Senate may, after a deliberation adopted by an absolute majority of its members, require the Chamber of Deputies to examine a legislative bill. In this case, the Chamber of Deputies proceeds to examine [the legislative bill] and makes its pronouncement within six months of the date of the Senate’s deliberation.
Individual Senators could still introduce legislative bills to the Chamber of Deputies, but article 70 of proposed amendment would limited their power of legislative initiative to the following matters: constitutional amendments, constitutional-level laws concerning the protection of the rights of ethnic and linguistic minorities, referendums, regional legislation, membership of Italy to the treaties of the European Union (art. 70).
The Senate has the power to veto all the legislative bills – ordinary laws and constitutional laws alike – introduced by the Chamber of Deputies. Without the Senate’s approval, a legislative bill cannot become a law. According to article 70 of the Constitution,
The legislative function is exercised collectively by both Houses.
The rationale behind article 70 was the need to introduce mutual checks between both chambers of the Parliament, to avoid that either chamber of the Parliament used its law-making power in ways not consistent with the fundamental principles enshrined in the Constitution. Articles 55 and 70 of the proposed amendment would substantially reduce the Senate’s ability to veto legislation, and they would alter its powers.
As it concerns its veto ability, the Senate would perform a largely consultative role in relation to law-making, and to the enforcement of state laws. The Senate would still keep receiving all legislative bills that the Chamber of Deputies has approved but, it would have a duty to examine the bill only upon request by one third of its members. (art. 70)
The Senate’s veto powers would be limited to vetoing legislation on the matters listed in the paragraph above. The changes proposed to the Senate’s veto power and law-making power may result in a far greater complexity of the legislative process, and are beyond the goal of this post.
Vote of No Confidence and Election of the Constitutional Court
The Constitutional Amendment would deprived the Senate of the power to introduce a vote of no confidence, and to elect the Constitutional Court.
In Italy, the support of both the Chamber of Deputies and the Senate is required, for the Government to remain in place. If members of the Senate have strong objections against the work of the Government, they can introduce a vote of no confidence if 10 per cent of its members sign a petition, and bring the vote to discussion. The amendments would attribute the power to introduce a vote of no confidence to the Chamber of Deputies only (art. 55, art. 94). The Constitutional Court is composed by five members, elected together by the Chamber of Deputies and by the Senate. The amendments would give the Chamber of Deputies the power to elect the majority of members of the Constitutional Court (three persons), while the two remaining members would be elected by mayors and local legislators (art. 135)
The Senate’s New Functions and Powers
The Constitutional Amendment would bestow a series of new powers on the 95 mayors and delegates to local legislative assemblies who, in a future, may concurrently hold the office of Senators. These powers are:
- Representing the legislative assemblies of the Regions of Italy.
- Coordinating relations between the State, the European Union, and other organs of the Republic of Italy. The text of the Constitutional Amendment does not yet specify whether “European Union” refers to the European Parliament, the European Council, or other EU Institutions and Bodies.
- Coordinating relations between the State and other organs of the Republic of Italy. The text of the Constitutional Amendment does not yet specify how “other organs of the Republic of Italy” should be understood.
- “Taking part to decisions aiming at the formation and the implementation of legislative enactments and policies of the European Union” (art. 55).
- “Evaluating the public policies and the activities of the public administration” (art. 55).
- “Verifying the impact of European Union policies on territories” (art. 55).
- “Taking part to the expression of opinions on the appointments within the power of the Government, where the law so foresees” (art. 55).
- “Taking part to monitoring the implementation of laws of the state” (art. 55).
- Evaluating public policy and the activity of the public administration.
- Performing knowledge-finding activities and making observations in relation to enactments or documents examined by the Chamber of Deputies.
Remuneration of the Members of Parliament
Article 69 of the Constitution states that:
Members of Parliament shall receive an allowance established by law
As proposed by the amendment, payment of an allowance may be limited to members of the Chamber of Deputies:
Article 69. Members of the Chamber of Deputies shall receive an allowance established by law.
The amendment to article 69 does not mean that Senators would no longer receive any allowance for their work, but simply that this matter is not regulated by constitutional legislation, but through ordinary law. Accordingly, article 122 of the proposed amendment states that the amount of the allowance will be determined by an ordinary law. In any case, Senators
Law-Making Powers of Regions
Generally speaking, the central government and the regions enjoy concurrent law making powers in several matters. As it can easily be imagined, concurrent law-making power can result in legislative conflicts therefore, reorganization of law-making powers respectively enjoyed by the Parliament and by the Regions has been at the centre of domestic debates on their most appropriate apportionment. The apportionment that will be proposed to voters on December 4 is as follows.
Law-making powers of the central government would remain largely unaltered, with the exception of matters related to health, social policy, food safety, education, and social security. In these matters, the central government would retain the power to enact “general and common dispositions” (art. 117), which would determine the broad legislative orientation to be followed by regional governments.
Regional governments would enjoy exclusive legislative power on the following matters:
- protection of linguistic minorities
- local transportation and infrastructure
- health and social service
- promotion of local economic development, services to enterprises, vocational training
- promotion of the right to an education
- culture, environment, tourism
- local financial relations
- other matters not explicitly regulated by the central government
The central government still has the power to intervene on each one of these matters to maintain the “legal and economic” unity or the country, or to protect national interest (art. 117). The central government, moreover, can legislate on matters pertaining to local governments, where local legislation violates international treaties or EU law (art. 120).
Abolition of the National Council on Economy and Labor
The National Council on Economy and Labor is a consultative organ established in 1957, with the goal to advice the Chamber of Deputies and the Senate on legislation on economic and social matters. Formed by 65 members chosen among experts and representatives of economic categories, the Council is one of the organs with the power to introduce a legislative bill. The proposal to abolish of the National Council has been motivated with its relative inactivity and with the absence of a “need for a coordination among those economic and social categories that justified its creation.”