CHAPTER III

 

CONSTITUTIONAL REVISIONS IN

ITALY, THE AMENDING PROCESS

 

MARIA ELISABETTA DE FRANCISCIS

 

 

PREMISES

 

The turbulent political and institutional moment through which Italy has been passing in the last twenty years has generated a lively debate, albeit not always scholarly, on reforms and on the provisions for constitu-tional revisions. Proposals for changes can be found in the agenda of many political parties1 since the early 1980s, yet the time for innovations came only in 1990 with the new administrative2 and electoral law for town councils.3 Furthermore, a popular referendum4 in 1993 resulted in the abrogation of the existing proportional electoral law5 and set in motion what has been called by the media "the peaceful revolution" and by politicians the "Second Republic" of Italy. In fact, when in 1994 Italians were called to renew both houses of the Par-liament with the new quasi-majoritarian electoral law, the result was an almost complete turnover. Most of the 945 elected legislators were freshmen who were to begin to look more seriously to the necessity of implementing sections of the constitution which had been ignored and/or only partially and pathologically executed, and to revise entire segments in order to improve its standing with the people.

In addition, pressures brought about by the deadline and provisions of the Maastricht Agreements have spurred a Northern separatist movement, while the operation led by many prosecutors to avert corruption, the operation known as "Clean Hands", has brought into focus two rather conflicting objectives: the desire for a more active role for Parliament and a more efficient executive. The "revolution" which was initiated by the people through referenda could not be brought to its full completion only through article 75 of Constitution con-cerning when a popular referendum is allowed. The XIIIth legislature, which began with the general elections in 1996, could not ignore the unrest of the people and formally placed on its agenda changes in both the form of state and of government.

Thus, in order to appease the increasingly strong po-pular demand, Italy is now set to amend the constitution. Yet, the 1948 constitution has been defined by jurists as rigid since it provides for an aggravated amending procedure6 which is necessarily slow and therefore a new device had to be taken into consideration.

The procedure to be followed in order to achieve these goals and the changes which will likely take place in Italy will be analyzed. But first a summary description of the constitutional framework set by the 1948 funda-mental law seems necessary for those who have not dedicated their scholarly endeavors to Italy.

 

THE SYSTEM OF GOVERNMENT

 

Throughout the Mussolini regime, the legislative branch had been the most hindered of the branches of government. It is understandable therefore that the Con-stituent Assembly opted for a system which would strengthen Parliament while weakening the executive. Thus the relationship between the executive and the legislative sanctioned in the constitution7 qualifies the Italian system of government as parliamentary, albeit it does not fall among the systems which implement the "pure model". In fact, some of the powers characteristically attributed to the executive and to the majority as well as many of the provisions for stability typical of parliamentary systems were not included in the 1948 constitution since such measures were considered limiting the freedom and the power of Parliament in the aftermath of the dictatorship.8

The necessity of a vote of confidence by the legislative branch in order for the executive to be invested in the powers of office was meant to make the Council of Ministers "responsible to" and not "depedent on" Parliament.9 Yet, the constructive vote of no con-fidence, adopted a year later in Germany, was one of the tools discarded by the Italians for fear of infringing on the freedom of Parliament.

Multipartism was guaranteed by the selection of the proportional electoral law by which each competing party obtains a percentage of the total seats in either House proportional to the popular vote obtained by the Party in the election). Also there was no Sperrklausel10 or provision that the seats in the Lower House will be attributed only to those parties which received at least 5 percent of the total popular vote, which was considered to be a limitation on the freedom of expression11 and of association.12 Furthermore, citizens were granted "the right to freely associate in parties"13 whose function in a democratic regime was also sanctioned in the consti-tution. Unlike the German Grundgesetz,14 the Italian constitution allows parties of all ideologies to compete in an election provided they "contribute through democratic processes to determining national policies".15 Once again the desire to avert the reoccurrence of a dictator-ship prevented the Constituent Assemblymen from intro-ducing measures aimed at limiting the absolute power of the parties thus differentiating Italy from Germany and Spain. Indeed, the new constitution of Spain (1978), admittedly inspired by the Italian and German, in addition to the Sperrklausel and to the sanctioning of political parties, has provided for a preventive control on the nature, scope and charter of the parties, but also for a subsequent control as a safeguard from possible un-democratic takeovers.16

The dependance on the policies of the political parties manifestly demonstrated by the innumerable governmental crisis was further evidenced by the absence of freedom attributed to the President of the Republic17 in nominating the President of the Council of Ministers, since the former can only appoint a personality who can obtain the support of both Houses. However, not one of the far too frequent governmental crises was initiated according to the procedure established by the Constitution.18 Rather, they all fell in the category of the "extra-parliamentary" crisis. Regardless of multipartism in order to obtain the support of a majority, the govern-ment could rely on very few parties. For, as the Christian Democratic Party (DC) was becoming weaker while remaining the strongest, the smaller parties were placed in the position of either bargaining for more leverage and visibility or "pulling-out" of the majority and provoking a crisis.

It is an understatement, then, to affirm that the Italian parliamentary system has developed along patho-logical lines attributing too much power to political parties19 which, in order to maintain their control, concentrated all decision making in the highest levels, and thus slowly transformed Parliament into a passive legislature. The negative effects of partitocrazia gave impulse to the process of amending the constitution. Therefore, the present "revolution" of Italy is physio-logical, rather than pathological. In fact, after fifty years of participatory democracy, Italians have come to learn and appreciate the potentialities of the fundamental law and, at the same time, have ceased to ignore the de-ficiencies and the pathological evolution of some insti-tutions.

The financial pressures brought by the Maastricht Agreements and the growing economic division between northern and southern Italy have reawakened the former’s dormant separatist feelings while generating awareness of a partially unfulfilled constitution on matters of decentralization.

The 1948 Constitution "recognizes and promotes local autonomies"20 while sanctioning the unitary state.21 The intentions of the Constituent Assemblymen were clearly stated further in the fundamental law which notes that "the Republic is divided into regions, provinces and municipalities".22 Notwithstanding the resolution to establish the Regions "as autonomous bodies having their own powers and functions . . .,"23 decentralization in any truly effective way came too late and in much too weak a manner because of partitocrazia.24 Only in 1968 did Parliament define the electoral procedures25 for the regional councils, ending the convention of appointing the members of this body and instead allowing the people to exercise their right to vote.26

It is further evident that the intent of the drafters of the 1948 constitution was to acknowledge the geogra-phic, his-torical, cultural and economic peculiarities 27 by establishing two categories of Regions, those created by Special Statute28 and those by Ordinary Statute.29 The determination to decentralize is moreover confirmed by the establishment of provinces and municipalities as "autonomous entities within the limits of . . . the law . . . which determine their functions."30

Accordingly, Italy was to be administered by four levels of government.31 Yet, obstruction by the bureau-cracy32 and opposition by political parties33 were matched by Parliament which, reluctantly and only partially, established by law the limits to those powers to be enjoyed by the segments and yet not enumerated in the Constitution.34 And while, legislative,35 administrative,36 and fiscal competences were granted to the regions, these were not only predetermined in nature, scope and extent, but also residual.38 Notwithstanding the intentions of the Constituent Assembly, the pathological development of decentralization has voided this section of the 1948 fundamental law of any serious meaning. The requests of the Lega Nord to reform the system at first from a highly centralized to a federal system, then to a merger of regions39 and finally to a confederate state through a secessionist process is a pattern that reflects this reality.

 

THE AMENDING PROCESS

 

Constitutional Provisions

 

For several months therefore, two levels of con-frontation could be found throughout Italy. One, more politically oriented, was focused on measures to increase governmental efficiency and on decentralization; the other, more legally oriented, focused on the procedures which would have to be followed in order to obtain the desired reforms. The scenario presented three possible outcomes: a) Parliament (as sole representative of the people’s sovereignty) could promote the changes through the enactment of ordinary laws; b) Parliament could follow the aggravated amending process; or c) the President of the Republic could call for the election of a Constituent Assembly.40 Thus, the debate was to be centered on the provisions for amending the Constitution and on any limitations to the procedure set by the same.41

In order to avoid drastic changes of regime the 1948 Constitution established an aggravated amending process by imposing the so-called "double reading procedure"42 and a subsequent probable referendum.43 However, the provisions contained in article 138 were sanctioned when the composition of Parliament was to be fulfilled through a proportional law. Thus the constitu-tional guarantee against a takeover which an endorsement "by an absolute majority of the members of each House in the second voting . . ." was to provide in a multi-party system,44 is no longer valid in a bi-polar situation.

Article 138 contains a further provision to require submitting "the said law . . . to a popular referendum when . . . such request is made by one fifth of the members of a House or five hundred thousand electors or five Regional Councils."45 Such possibility is foreclosed were both Houses to approve an amendment by a majority of two-thirds in the second voting. Again, this would seem to be a guarantee of democratic continuity nullified by the new electoral law.

Last, but not least, pertinent to the process of re-writing the constitution is the aspect of the time which must lapse between the two votes "Laws amending the Constitution . . . shall be adopted by each House after two successive debates at intervals of not less than three months. . . ."46 Theoretically, both Houses could have voted in favor of an amendment and then, during the three months interval they could be dismissed. Since the 1948 constitution has adopted "perfect" bicameralism,47 a new Parliament elected in the bi-polar system, could want that amendment to become an ordinary law through the normative process sanctioned in the constitution.48 While an ordinary law is inferior to a constitutional law in the hierarchy of laws, it would be in contrast with it and, hypothetically, the choice of amending the constitution could fall on the Constitutional Court49 and not on the people.50

As for the limitations on introducing amendments to the 1948 fundamental law, the constitution is extremely clear.51 There is only one restriction, and it is under-standably in regard to the republican form. That form had been chosen on June 2, 1946 in an institutional referendum and it is therefore considered the origin of the same constitution and the expression of sovereignty fully invested in the people.

There is however another part of the constitution which is considered untouchable as the form of republic, and that is the whole first part of the fundamental law which includes civil rights,52 ethical and social rela-tions,53 economic issues54 and the guarantees of political rights.55 This is so because each one of them is indis-pensable to the definition of a republic and the absence of one or all of the above rights and guarantees would infringe the precept enshrined in article 139.

 

Constitutional Law n. 1/1997 and the Bicameral Committee for Constitutional Revisions

 

It became apparent then that a different legal approach should be undertaken by the XIIIth Legislature if revisions to the constitution were to be achieved. A solution was found in order to avoid the election of a Constituent Assembly with proportional criteria, while guaranteeing the plurality of political ideas as expressed by the people in the last electoral consultation, in addition to safeguarding their sovereignty by holding a mandatory referendum. Thus multipartism, minorities and the sovereignty of the people were to be safeguarded with the institution in January, 1997, of a Bicameral Committee for Constitutional Revisions.

This is the third committee of its kind in a decade.56 However, the expectations are for it to succeed notwith-standing the failure of the previous two. Furthermore, this is the second such committee created with a special con-stitutional law,57 establishing a custom which differs from the provisions of article 13858 while not obliterating it. In fact, the procedure established for the approval of constitutional laws is the same one which constitutional amendments must follow. Parliament fulfilled the mandated provisions of the double voting at three month intervals in both Houses. Therefore, the Bicameral Committee is neither new in concept nor in the manner of its formation.

There are however at least two factors which differ-entiate this latest committee from its two predecessors which might justify the expectations of success. The first and more apparent factor is the awareness which politicians have acquired of the determination of the Italian people to revise the constitution.59 The second factor which makes of this Bicameral Committee a unique institution in Italian parliamentary and constitutional history is that the law insti-tuting it contains not only the subject matters on which the committee is mandated to work, but also a timetable by which it will have to complete the task.

 

The Timetable of the Bicameral Committee for

Constitutional Revisions

 

The law provides for the committee to be formed by 35 Senators and 35 Deputies appointed by the President of each House within five days from the law’s publica-tion in the Gazzetta Ufficiale -- all selected proportionally to the individual party’s electoral representation in that House.60 Furthermore, within ten days61 the Presidents of both Houses were mandated to convene the first meeting of the committee in order for it to elect its executive office: one president, three vice-presidents and four secretaries.62

The committee will decide its own internal regula-tions and the calendar of the meetings. Moreover, it will form as many subcommittees as deemed necessary to thoroughly complete its obligations by the scheduled63 deadline of June 30, 1997.64

Any member of either House will be given the opportunity for thirty days to present to the presiding officer of his/her chamber amendments to the project or projects65 which the Bicameral Committee will have produced by June 30. The Presidents of both Houses will forward such amend-ments to the executive officers of the Bicameral Committee by July 30. The committee will, in turn, have one month to give its opinion on the amendments and to decide which ones to accept and include in the comprehensive new project.

Between September 1997 and February 1998 the Houses will examine, in meetings of the whole, the pro-posals elaborated by the committee. Both the individual legislator and the committee can introduce new amend-ments which must receive wide circulation, also among the public, before the Houses begin the discussions. The deadline of the former is to be five days prior, while that of the latter will be forty-eight hours.66

Each House will deliberate twice on the projects at an interval of not less than three months. The first time, the voting will be article by article without a final vote on each project, but with a comprehensive vote on the whole. In the second deliberation, the project will have to be approved by each House by the absolute majority of its members67 in order for it to become constitutional law.

The final deadline established by Constitutional Law 1/1997 is perhaps the one which differentiates the procedure to write this constitutional law vis-à- vis the provisions of article 138.68 The law mandates, in fact, that a referendum be held within three months from the final vote in the last House,69 notwithstanding the quorum reached by the Houses at final vote. The proposed new section of the Constitution will be considered ratified if the majority of the voters will exercise their right to vote and if the majority of the valid votes will have been expressed in its favor.

While there is a generalized scepticism about the reforms, this seems to be oriented more towards the politicians’ true reformist feelings than towards the accomplishment of reforms. Therefore, the doubts are not on whether the reforms will take place, but on the depth and breadth they will have. The doubts find justification in the relevance and great variety of the subject matters on which the law instituting the Bicameral Committee has mandated it to elaborate amendments to the present constitution.

 

THE ISSUES TO BE REVISED BY

THE BICAMERAL COMMITTEE

 

There is only one limitation in the constitution of 1948 to the amending procedure, and that is that "the form of Republic shall not be a matter for constitutional amendment."70 It is this provision which generated the fear of an election of a Constituent Assembly which by its own nature would have enjoyed carte blanche on the whole text of the constitution.

That Parliament felt the need to specify which sections of the present constitution were to be amended by the committee.71 This could appear peculiarly limiting on the freedom and sovereignty of the legislators in the committee, considering that the overwhelming raison d’étre of the committee itself is to propose radical revisions to the fundamental law. However, the transition from the First to the Second Republic which Italy has been experiencing, called for prudence in order to elude the risk of a drastic change of regime at a time when many of the guarantees of democracy and minorities have been weakened by the new electoral law.72

Although a superficial reading of Constitutional Law 1/1997 leads to the conclusion that the enumeration of subject matters could indicate a limitation to the activities of the constitutional legislators, the law does embrace issues which are unmistakably among the most relevant sections of a constitution while not excluding potential residual legislative powers for related subjects.73

Throughout five months, between February and June, 1997, the Bicameral Committee will have to elaborate revisions to Part II of the constitution "Organi-zation of the Republic" and specifically revise the form of State, the form of Government, Bicameralism and the system of guarantees.74 The relevance of these subjects may not be underestimated and the success of this amending process will undoubtedly lead Italy into a Second Republic.

 

The Form of State. The question of decentralization and whether the present constitution sanctions or rejects federalism, is perhaps the most urgent and the most debated throughout the nation. How the 1948 Constituent Assembly had envisioned decentralization and how poorly and belatedly it has been implemented,75 fostering restlessness especially among those who live in wealthier areas of the nation,76 has already been illustrated. Because of the discontent of the people, the uncertainty of the transition, and the financial deadlines of Maastricht, there is no one political party which will deny the opportunity to, and the imperative implementation of, decentralization whether called federalism or regionalism.

The "peaceful Revolution" of Italy has been charac-terized by an equal effort in jurisprudence and by consti-tutional lawyers. Throughout the last four years the scholarly debate has been focused on issues leading to a more elastic interpretation of the constitution77 in order to provide politicians with a reasonable and constitutionally correct approach to federalism.78 The nucleus of the debate was on: a) the legal meaning which sovereignty and autonomy have had in Roman Law countries, and b) the typology of the State, that is, whether a federal state is a sub-type of a unitary state or the most commonly espoused form of the composite state.79

The traditional doctrine maintained a distinction between the two types of states. In the federal model the segments80 enjoy the three fundamental functions of the state (legislative, executive and judiciary) and relinquish to the central government their original external sovereignty.81 In the regional model, instead, depending on the level of decentralization, it is only possible to find a normative and an administrative function and in most cases these will be of a residual nature. Furthermore, a distinction was made between regional autonomy and state sovereignty. The regions, being created ex novo enjoin an octroyè or granted autonomy while the segments having been sovereign states before forming the union are titular of an original and residual autonomy.82 The more flexible approach interprets the federal state as a sub-type of the unitary state.83 Sovereignty lying necessarily only in the superior system, either because it was delegated to it by the component parts or because the unitary state decided to decentralize in order to better expedite its functions.84 Thus, a federal state is a unitary state which is organized in the most far-reaching decentralist manner. Regionalism and federalism represent two different levels of decentralization within the same form of state.85

Strengthened by this extended debate and supported by the newest doctrine, the Bicameral Committee will be able to look at a variety of models within Europe in addition to Canada and the United States of America.86 It seems improbable at this stage, that the committee will opt for the Spanish constitutionalization of the regional statutes which would be the easiest means to amend the constitution since it would only elevate the status of all Ordinary Regions to that of the five with Special Statute; the last have been granted more autonomy in their everyday policies, while enjoying more residual powers.87 Presumably, instead, the committee will try to blend the German, Austrian and American models in order to elaborate a division of powers between the center and the segments which would be identical for all Regions; the Constitution would include only one enumeration of powers, the fewest possible to be attributed to the central government while all residual powers would be enjoin by the Regions. Last but certainly not least, the committee will have to decide whether to preserve the option for the Regions to merge in order to obtain larger (yet smaller than the national state) and more cost effective segments.88

Accomplishing decentralization in the manner just described will understandably imply modifications to Bica-meralism -- as will be discussed below -- in addition to transforming the state administrative and fiscal apparatus to accommodate the new division of powers. There are clearly two correlates to these innovations: a) whether to accept the provocation of the Lega Nord proclaiming the lack of usefulness of the Prefects in a federal state;89 and b) whether to change the provisions for the approval of the state budget.90

 

The Form of Government. This question is perhaps the one which has been oversimplified by the media while receiving very little in-depth analysis by the scholarly community -- at least until the Bicameral Committee convened and a few substantial proposals for revisions were introduced. The almost complete shift from the proportional electoral law to the quasi-majoritarian model (75 percent of the seats are attributed through the majority electoral system and the remaining 25 percent through the proportional system) has modified the old balances within Parliament as well as the "confidentiary relation" which exists between the Council of Ministers and the legislative branch and which stems from the vote of confidence to given to the government by the Parliament. It was therefore inevitable that the revisionist debate would embrace, in addition to the question of the powers to be attributed to the President of the Republic and to the President of the Council of Ministers and their electoral base, also the issue of the powers of the majority and the role of the opposition within Parliament.91

The electoral reform has proven to be effective in reducing the field of political contenders from a multi-party to a bipolar system, although still evidencing the need to reform the procedure for appointing the President of the Council of Ministers.92 A great variety of parlia-mentary models, could be taken into serious consideration by the Bicameral Committee. It seems understandable, however, that to favor constitutional productivity the field was narrowed to the German, Austrian and French models with what would appear to be a propensity towards the French semi-presidential model.83

Predictably the debate within the committee will be centered between the two models which could give the Italian people a strong, more efficient executive checked by a newly empowered legislature which would have to be the depository of the people’s sovereignty. Checks and balances will have to be introduced in order to safeguard Italy from authoritarian or plebiscitarian temptations which could otherwise arise.94 Both models, that of the chancellor and the semi-presidential one, imply the coexistence of two titulars of policy initiatives, and thus the committee will have to devise a new procedure for the bestowal of confidence95 on the President of the Council of Ministers as well as envision the direct popular election of the President of the Republic.96

As for the President of the Council of Ministers, the new fundamental law will have to contain provisions rede-fining the role, the powers and the responsibility both to parliament and to the people. In order to comply with the 1993 referendum results, the President of the Council of Ministers will have to be "the recognized" leader of a parliamentary majority. To ensure the stability of the executive and prevent governmental crisis, the Bicameral Committee could introduce provisions in favor of a vote of confidence along the lines of the French "presumption" which does not require an active vote of confidence for the government to be invested with executive power, and it could borrow from either the French or the German models with the introduction of a constructive vote of no confidence (in the German model the House must provide for a new Chancellor when it refuses a vote of confidence in the existing one). Finally, if the President of the Council of Ministers is to be the leader of the majority, he/she must be given not just the power to appoint the Ministers, but also that to remove them.

A system in which the President of the Republic is elected directly by the people and has the policy initiatives would have to include provisions which will make him/her no longer responsible only for high treason or plots against the Constitution.97 In a highly decen-tralized state the President will have to be the guarantor of territorial integrity and not just the representative of national unity.98 In order for him/her to be truly the representative of the people, the eligibility requirements would have to be modified and a primary election of some kind introduced. If the perceived danger is an authoritarian outcome, the Bicameral Committee will have to study the possibility of differentiating not just the term of office of the President from that of par-liamentarians but scheduling the elections of both at different times.99 Finally, the President of the Republic should be granted more powers in foreign policy while some of his present domestic powers would have to be reduced.100

 

Bicameralism. The sub-committee which will be dealing with this issue has begun working on the basis of the agreements reached (although not formalized) in 1994 by the previous committee.101 Acceptance of a quasi-identity between regionalism and federalism will certainly be useful for the subcommittee on the form of state. If the federal option will be agreed upon in that context then bicameralism will have to be modified in that direction as well.

In the early stages of the "peaceful revolution" it became apparent that parliament, as an independent insti-tution in charge of legislative power, had conceded most of the initiative to the executive and before it to political parties. In order to defeat partitocrazia the in-House regu-lations were revised for both the Senate and the Chamber and the electoral law was changed to encourage the bi-polar/ two party system. However major reforms were postponed to a time when they could be studied from a holistic perspective, when both the form of state and of government would be modified. It is precisely for this reason that the issue was enumerated in Constitu-tional Law 1/1997. Two major reforms will have to be taken into consideration: the size of the chambers and the representation/ competence of each.

In the aftermath of the Fascist dictatorship, the Con-stituent Assembly saw it appropriate to guarantee the widest geographic and political representation by establishing a multi-party system and a large legislative body.102 These in turn were to be the most effective deterrents to a new dictatorial scheme, in addition to being essential to the correct functioning of a represen-tative democracy.103 The reduction of membership in both Houses has been on the agenda of many political parties for almost two decades.104 It is probably the most postponed reform in Italy and predictably it will encounter more resistance from the smaller political parties who might see in a reduced size of parliament a proportional decrease of their representation.

On the other hand, if the reforms move in the direction of federalism, a different type of representative body will have to be considered. The Bicameral Com-mittee should contemplate moving from "perfect" bicameralism, which has become obsolete, towards the new model. A variety of options are evident throughout the world105 since the majority of nations which accept bicameralism have implemented the latter model. The committee could believably pattern the new Parliament after either the United States and Germany or after Great Britain and Spain. If the upper House is to be a chamber reflecting regional representation, then the model to be followed is that of the Senate in The United States of America or of the Bundesrat in Germany. If, on the other hand, the transition towards federalism will be smoother, only limited powers could be granted to the new Italian Senate.106 Predictably the revision of the form of state will be in the direction of very strong regionalism107 and not yet federalism. Thus it is reasonable to believe that the committee will opt for an elected Senate molded after the Spanish Senado rather then a chamber composed of representatives of the regional executives like in the German Bundesrat. The Senators will have more power on regional matters108 and perhaps less legislative initiative.

The Chamber of Deputies could see presumably a strengthening of powers by remaining the sole House to represent national interests like the French Assemblée Nationale. In this event, it would become the only chamber granting the vote of confidence. If decentralization occurs, then the new chamber should be in the position to expedite more efficiently its control and legislative tasks since many subject matters will be granted to the sole initiative of the Regional Assemblies.

Moreover, another task of the Bicameral Committee will have to be to balance the power of the majority with that of the opposition, since the role attributed to the opposition becomes an element of evaluation of demo-cratic standards and an essential component of the governmental structure. Should those who lose an election be given a function as comptroller of the majority party or coalition? How extensive should this role be? Is this function better served by the committees within the legislative branch or by an independent super partes authority? Should the activities of the committees be highly or scarcely regulated? Should they be granted investigative and or legislative powers? These are just some of the questions which the Bicameral Committee will have to answer most likely in drafting what has already been called the "Opposition Statute."109

Furthermore, the committee will have to reconsider the whole issue of referenda. The provisions to validly hold one, the quorum necessary to have it approved and the typology of it included in article 75 deserve to be modified in order to be more coherent with a majoritarian system. The inflationary recourse to referenda which has characterized the last two decades,110 while acquainting the Italian voter with such an instrument of direct democracy, has also de-monstrated the limitations of the abrogative (veto) form. Presumably the committee will consider introducing a positive form of the referendum as well as maintaining the abrogative one, while elevating the required number of citizens requesting that one be held.111 Because of the extremely elevated costs for the state to hold a referendum it would be most appropriate if the Bicameral Committee were to introduced provisions limiting the subject matters which can be addressed through this procedure; raising the quorum necessary to request one; and initiating a check on the constitutionality of the question before the process reaches the final stages.

Lastly, it is auspicious that the membership of both Houses will be reduced now that the system of govern-ment has shifted towards the bi-polar model and the majoritarian electoral law renders the multi-party system obsolete.

 

The System of Guarantees. Finally, Constitutional Law 1/1997 has charged the Bicameral Committee on Revisions with the issue of guarantees by which the Italian Constitution intends its Supreme Court.112

The liberal Albertine Statute had proven deficient when it allowed the Fascist regime to take power legally. An overwhelming concern of the Constituent Assembly of 1946 was to build the new nation with more constitu-tional guarantees than envisioned by the previous statute. The new Constitutional Court was charged with reviewing the constitutionality of legislation and adjudi-cating disputes among government institutions and between the regions and the central government. That court also may impeach principal executive officials and, since 1953,113 determine the validity of referendum proposals.114

Access to the Constitutional Court is open only formally. In reality questions on the constitutionality of the laws can be raised by any individual, group, or regional government only if relevant to the case in question115 and only "incidentally"116 while the same case is being decided by a lower Court. However, many cases are not heard by the Constitutional Court, since a large margin of discretionary interpretation is left to the lower court judge who can prevent a case from reaching the Constitutional Court by issuing an interlocutory judgement noting that the claim is unfounded. Notwith-standing opposition from within the judiciary, the Italian Constitutional Court asserted its prerogative to interpret the meaning of the constitution and the intent of the legislators, and proved to be a strong defender of civil liberties.117 Much could be improved, however, to render the Constitutional Court more accessible to the Italian people. On this subject the Bicameral Committee could conceivably look at the provisions for direct, albeit limited, access to the Constitutional Court in Spain and Germany118 and consider its desirability for Italy.

Furthermore, it is understandable that the Italian people will be anticipating fundamental revisions of the powers and competences of this institution especially if true decentralization is to be accomplished. The present constitution, for example, only allows for the Regions and the central State to approach the Court in cases of conflict in the allocation of powers119 while the Munici-palities and the Provinces can submit their cases only to the ordinary and administrative courts. Decentralization will have to be reflected also in the composition of the Constitutional Court which probably will either become a larger body or be nominated by more institutions. At present, the Constitutional Court is composed of fifteen judges of which one third are nominated by the President of the Republic, one third by Parliament in joint voting, and one third by the highest ordinary and administrative courts.120 It is reasonable to believe that the Bicameral Committee will deliberate a provision to allow the Regions to be represented in the Constitutional Court in addition to the three branches of government.121

However, if revisions should occur at the Constitu-tional Court level they should not be just for this impor-tant institution, but also for the judiciary as a whole. The debate on revisions of the judiciary, will necessarily include among others, the issues of the separation of the careers between judges and prosecutors, the introduction of justices of the peace, the independence and the accountability of the justices, and a revision of the functions of the High Council of the Judiciary.122 Predictably the judiciary will resist innovations which have always been considered by it as a whole as diminishing their independence and autonomy.

Undoubtedly the Bicameral Committee will also study the feasibility of introducing in the fundamental law of the land forms of guarantees which have already been introduced in the ordinary system without, as yet, having been incorporated in the constitution.123 Among these, there are two on which the Bicameral Committee will presumably focus its attention: the independent authorities and the difensore civico. The latter is an ombudsman in charge of supervising and investigating the functioning of the admi-nistrative offices with powers to initiate disciplinary actions and make censures when citizens have been improperly denied their rights.124

Independent authorities, on the other hand were introduced in Italy in the 1980s based on the model of independent regulatory agencies in the American system.125 Law 142/1990 while beginning to reorganize the tasks, powers and internal structure of the administrative apparatus in order to establish public openness and accountability or "transparency" within the public sector, has attempted also to locate and establish the position and role of these functions at the local and regional levels. It might be hoped, then, that the Bicameral Committee will study this subject among the other guarantees to determine if the independent autho-rities are to be arbiters of the good execution of the laws or a fourth branch of government and whether the new Constitution should include provisions regulating their creation, performance, tenure, accountability and disciplinary powers in addition to provisions establishing the manner of appointing their executive officers.

 

CONCLUSIONS

 

The transition towards a new Second Republic has undoubtedly begun. It should have become apparent that "the peaceful revolution" which Italy has been under-going throughout the last seven years may not be as tranquil as the media have described it. This period has been characterized by two attempts at rewriting the constitution through the creation, by constitutional laws, of Parliamentary Bicameral Committees126 whose slow and tenacious labour has set the grounds for the overall peacefulness throughout the nation.

Notwithstanding generalized skepticism on the true reformist intentions of the politicians, there seems no doubt127 that this Bicameral Committee will meet the challenges both in terms of the issues and of the time-tables set by constitutional law 1/1997. The requirements established by the Maastricht Agreements and the pressures of the Lega Nord will incline politicians to pursue reforms that will give the nation a highly regiona-lized (if not federal) character and a much more efficient state. However, the reform process which was begun in January, 1997, does not imply amending the whole constitution nor that the Bicameral Committee has been given the carte blanche powers a Constituent Assembly would have been em-powered to exercise.128

The procedure followed for the creation of the Bica-meral Committee was not unknown to the legal system; the device has been implemented previously and unsuccessfully.129 However, some perplexities do arise from the enumeration of subject matters which this committee is entitled to revise. The reality is that a constitution, any constitution, while being indeed subdivided in parts, titles or sections, is always a systemic law the various components of which constitute a structurally functional whole. If this is true, then to declare parts of a constitution as "untouchable" provokes two orders of problems. The first functional and the second pertaining to legal doctrine and the theory of the hierarchy of the laws.

The first set of problems, which should be evident to those who are acquainted with the structure of the Italian Constitution, originates in the selection of the sections excluded from the amending process. They are those related to the fundamental principles of the republican regime and the rights and duties of citizens.130 Modifying Part II will, most likely, imply revising a few of the provisions and statutes pertaining with the issues dealt with in Part I. Altering, however, will not mean revising the reach of those resolutions since they have been found to be, both by the scholarly community and the Constitutional Court, the "genetic code" of the 1948 Constitution. Thus, the mutation of the scope of any or all the articles included in Part I would signify the end of this regime and the beginning of a com-pletely new constitutional system.131

Of further interest for law scholars are the implications which Constitutional Law 1/1997 has spawned for the theory of the hierarchy of the laws. In fact, proclaiming that parts of the fundamental law are not to be amended is tantamount to claiming that not all the provisions of the Constitution are equal. Because of the limitations set in Constitutional Law 1/1997 there are now some provisions which are more cons-titutional than others -- so much so that the latter can be amended and the former cannot. This implies that there will be one more rank in the hierarchy of laws and that con-stitutional provisions included in Part I will be superior to those in Part II. Thus, the principles and discipline of the former will have to prevail on those of the latter.

Furthermore, this hierarchy of constitutional laws will generate problems for the courts and especially for the Constitutional Court when exercising judicial review. Indeed, it might be asked whether, in order to pronounce a law unconstitutional, the justices will evaluate it against the principles enunciated in Part I or against those in Part II? And, will the justices pronounce laws to be unconstitutional only if they infringe on the rights guaranteed in the "untouchable" constitution? Answers to these and other questions will have to be given by scholars and justices in the near future if the Bicameral Committee is to succeed in meeting its deadlines and if the people of Italy will accept, through referendum, the new constitution. By March, 1997, the Bicameral Committee on Constitutional Revisions established in January 24, 1997 had been working on schedule and expressed its conviction of fulfilling its obligation to parliament and to the nation.

 

NOTES

 

1. The Italian communist party was one of the first to consider structural changes. These were advocated by Leonilde Iotti in 1979 who succeeded to invest the Central Committee of the PCI and placed the issue on the party’s political platform. Iotti proposed modifying "perfect" bicameralism (a parliamentary system according to which both the House and the Senate have equal powers in all matters) by revising the functions and the structure of both Houses of Parliament. She suggested diversification of the fields of competence between the two branches; she proposed that a bill, initiated in one chamber, would have an expedited process in the other; she recommended reducing the number of deputies to about 400 and the senators to about 200. Maria Elisabetta de Franciscis "Leonilde Iotti" in Rebecca Mae Salokar and Mary L. Volcansek (eds.), Women in Law, A Bio-Bibliographical Sourcebook (Westport, Connecticut: Greenwood Press, 1996), pp. 101-111.

2. Law 241/1990 (August 7) as further integrated by Law 273/1995 (July 11) provides for administrative transparency enforced by instituting at the local level a sort of ombudsman called difensore civico.

3. Law 142/1990 delegated more powers, specifically financial autonomy, to the towns and provided for a new electoral law for both the mayors and their town-councilmen establishing direct responsibility between elected and electors.

4. The Constituent Assembly did not deem it safe for the democratic regime which had just been established in Italy to sanction the possibility for the people to propose legislation through a referendum. Only a referendum to abrogate, totally or partially, a law was contemplated. "A popular referendum shall be held to abrogate, totally or partially, a law . . . when requested by five hundred thousand electors. . . ." Italian Constitution, article 75.

5. The new electoral law which established that seventy-five per cent of each House would be elected with the majoritarian system while the remaining twenty-five per cent would be attributed to the political parties, propor-tionally to the votes expressed by the people and provided they received more than 4.5 per cent.

6. The Aggravated Amending procedure is the one indicated in article 138, section 1 of the Italian Constitution. "Laws amending the Constitution and other constitutional laws 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. . . ."

7. Italian Constitution, article 94 "The government must have the confidence of both houses".

8. The opposite approach was chosen only a year later in the Federal Republic of Germany "The Bundestag may express a vote of no confidence only when it elects by a majority of its members a successor and when it asks the Federal President to withdraw the powers to the Federal Chancellor. The Federal President must conform to the request and appoint the elected. Between the motion and the election must pass forty-eight hours". German Grundgesetz, article 67.

9. This was done since the legislative branch is the only organ of the state which is directly elected by the people. Thus the Council of Ministers is indirectly responsible to the people.

10. It is the provision included in the German electoral law (May 7, 1956 BWG) which limits the actual presence of political parties in the Bundestag to only those which have obtained at least five per cent of the votes expressed throughout the nation.

11. Italian Constitution, article 21 "All have the right to express freely their thought. . . ." Articles 13 through 28 of the Constitution are the Italian equivalent of the Bill of Rights in Common Law countries and are considered non emendable.

12. Italian Constitution, article 18 " Citizens have the right to form associations. . . ."

13. Italian Constitution, article 49.

14. "Those political parties which, either in their platform or through the behaviour of their membership, attempt to weaken or to eliminate the fundamental demo-cratic order or to threaten the existence of the Federal Republic of Germany are unconstitutional. Competent to decide the unconstitutionality is the Federal Constitutional Court." German Grundgesetz, article 21.2. The Federal Constitutional Court in two separate decisions proclaimed unconstitutional both the Neo-Nazi (1952) and the Com-munist party (1956).

15. Italian Constitution, article 49.

16. By 1978 the negative consequences provoked by the lack of procedures regulating the activities of political parties in Italy was already evident; thus it seemed wise that for the implementation of procedures aimed at insuring a truly democratic role of the political parties, the Spanish Constitution is closer to the Grundgesetz (art.21) then to the Italian Constitution. The last sub paragraph of article 6 of the Spanish Constitution "their internal organizations and their procedures must be democratic" was further developed by an organic law (54/1978) whose article 2 disciplines the procedures to be followed by the political parties (i.e. registration, statute, finances) in order to be considered persona giuridica, procedures which are comparable to those followed for registration by business corporations. This organic law represents the only such regulation in western democracies and sets Spain afar from its neighbors. For an analysis of this law and its implications for democracy see, Gabriella Duranti, "Personalità giuridica dei partiti: originalità del sistema Spagnolo" in «1989» Rivista di Diritto Pubblico e Scienze Politiche, Anno VI, n.1, 1996, pp. 71-93.

17. Italian Constitution, article 92 "The President of the Republic nominates the President of the Council of Ministers and, on his proposal, the Ministers.".

18. Italian Constitution, article 94.5 "A motion of no-confidence must be signed by at least one tenth of the members of the house and cannot be debated earlier than three days of its presentation."

19. This phenomenon has been known as "partitocrazia" (a government system in which the main decisions are taken by the leadership of the parties which are members of the governing coalition, with the government acting essentially as a ratifying body) and has been studied and discussed widely by the international scholarly community for the last twenty years. For all see, Joseph La Palombara, Democracy Italian Style (New Haven: Yale University Press, 1987); and Political Science Quarterly, Special Issue: Presidential and Parliamentary Democracies: Which Works Best?, vol. 109, n. 3.

20. Italian Constitution, article 5.

21. Italian Constitution, article 5 "The Republic, one and indivisible. . . ."

22. Italian Constitution, article 114.

23. Italian Constitution, article 115.

24. Cfr. footnote 16.

25. Law 108, February 17, 1968.

26. Italian Constitution, article 122 "The electoral system, . . . of regional councilors shall be established by a law of the Republic."

27. Italian Constitution, article 116 " To Sicily, Sardinia, Trentino-Alto Adige, Friuli-Venezia Giulia and Valle d’Aosta are attributed forms and particular conditions of autonomy. . . ." Soon after the death of Franco, Prime Minister Suarez and his government followed the Italian model, set in article 116 of the Italian Constitution which provides for special statutes for five regions, and established the status and powers of the "pre-autonomy territorial entities" granting them to the Basque, Catalonia and Galicia regions. On the development of these special territorial autonomies and on the decentralization in the new Spanish Constitution see, Gabriella Duranti, "Il Caso Spagnolo" in Silvano Labriola (ed.) Il Decentramento Politico negli Stati dell’Unione Europea (Rimini, Maggioli Editore, 1997), pp. 75-109.

28. Italian Constitution, article 116.

29. Italian Constitution, article 123 "Every region shall have a statute which . . . is passed by the regional council by absolute majority of its members and is approved by a law of the Republic."This procedure applies to all remaining regions while for the Special five the Statute was granted directly by Parliament.

30. Italian Constitution, article 128.

31. Italian Constitution, article 129 "The provinces and municipalities shall also be units of state and regional decentralization."

32. The passive resistance of civil servants had also impeded the functioning of the Constitutional Court for almost a decade after the implementation of the Consti-tution. On this subject, Maria Elisabetta de Franciscis and Rosella Zannini "Judicial Policy Making in Italy: The Constitutional Court" in Mary L. Volcansek (ed.) Judicial Politics and Policy-Making in Western Europe (London, Frank Cass & Co. Ltd., 1992), pp. 68-79.

33. These feared a growth of power by the segments (which being smaller in size, would be establishing a direct line of responsibility with the people) and a potential decrease of their own.

34. The term "segment" is used here with the same meaning given to it by Max B. Thatcher: ". . . where the term segment applies to the parts of the whole, i.e. the states, provinces, or cantons . . ." in "Toward a Theory of Federalism" in «1989» Rivista di Diritto Pubblico e Scienze Politiche, Anno IV, n.3-4/1994, pp. 547-564.

35. Italian Constitution, article 117 "Regions may legislate within the limits of the fundamental principles established by the laws of the State. . . ."

36. Italian Constitution, article 118 "Regions have responsibility for the administrative functions in the areas listed . . . except in those . . . which may be allocated by the laws of the Republic. . . ."

37. Italian Constitution, article 119 "The Regions shall be financially autonomous in the forms and within the limits established by the laws of the Republic. . . ."

38. Italian Constitution, article 132 "It shall be allowed . . . to decide the merger between existing regions or the creation of new regions. . . ."

39. Italian Constitution, article 132 "It shall be allowed . . . to decide the merger between existing regions or the creation of new regions. . . ."

40. The 1948 Italian Constitution, like those of other countries, does not contemplate procedures for a Constituent Assembly whose purpose would be that of overturning the existing regime. However, article 87.3 mandates the President to "call elections for the new Houses and fixes their first meetings." Those who advocated more guaranties to protect the present Constitution saw an election, purposely and exceptionally called with the proportional system, as allowing the formation of an Assembly more representative of the people and therefore were willing to delegate constituent powers to such an Assembly. This was not a very viable route and was advocated only by the Lega Nord.

41. Italian Constitution, articles 138 and 139.

42. Italian Constitution, article 138 "Laws amending the constitution and other constitutional laws 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."

43. Italian Constitution, article 138.2 "The said laws are submitted to a popular referendum when, . . . such request is made by one fifth of the members of a House or five hundred thousand electors or five regional councils. . . ."

44. The eventuality of the occurrence that almost all parties in Parliament would agree on the proposed amendment being useful and opportune was to be rare and could not be abrupt.

45. Italian Constitution, article 138.2.

46. Italian Constitution, article 138.

47. This is a unique and extreme interpretation of bicameralism by which both Houses duplicate each other on legislative matters and competence. Italian Constitution, article 70 "The legislative function is exercised collectively by both Houses."

48. Italian Constitution, article 72 "The regular procedure for examination and approval directly by the House is always followed for bills on constitutional . . . matters. . . ."

49. Italian Constitution, article 134 "The Constitutional Court shall pass judgement on controversies on the constitutional legitimacy of laws. . . ."

50. Italian Constitution, article 137.3 "Against the de-cision of the Constitutional Court no appeals are allowed."

51. Italian Constitution, article 139 "The form of Republic shall not be a matter for constitutional amend-ment."

52. Italian Constitution, articles 13 through 28.

53. Italian Constitution, articles 29 through 34.

54. Italian Constitution, articles 35 through 47.

55. Italian Constitution, articles 48 through 54.

56. The first Bicameral Committee dates to the mid 1980s and it was created by a joint decision of both Houses of Parliament, while the second one was instituted in 1993 with the same procedure followed in 1997.

57. The first one by constitutional law 1/1993 (August 6,1993) and this one by constitutional law 1/1997 (January 24,1997).

58. See paragraph 4, pp. 6-8.

59. The protests organized by the Lega Nord are not the only ones to take place, although these are the most em-phasized by the media because of the movement’s extreme boldness on the subject of decentralization.

60. Constitutional law 1/January 24, 1997, article 1.

61. This took place on February 5, 1997.

62. Constitutional law 1/1997, article 1.3.

63. Constitutional law 1/1997, article 2.4.

64. The Bicameral Committee has been keeping a very tight schedule and all its members have declared willingness to respect the calendar mandated in the instituting Constitutional Law.

65. The law-makers in fact having foreseen diversity of opinions and their probable impossible reconciliation, have provided, in this initial stage, for both a majority and a minority project. Constitutional law 1/1997, article 2.4.

66. Constitutional law 1/1997, article 3.3.

67. Constitutional law 1/1997, article 3.4.

68. Italian Constitution, article 138.2 "The said laws are submitted to a popular referendum when . . . such request is made. . . ." The following comma however precludes the possibility of a referendum if "the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members." On the contrary, this special consti-tutional law instituting the Bicameral Committee for Revisions mandates for the sovereign people to express its decision to ratify the new section of the Constitution through the referendum.

69. Constitutional law 1/1997, article 4.

70. Italian Constitution, article 139.

71. Constitutional law 1/1997, article 1.4.

72. See paragraph 4, pp. 6-8.

73. For example, the electoral law has not been included in the enumeration of issues subjected to revision. Yet, the new Constitution must, as a whole, be functional. Thus, if a new system of government is to be implemented, this might necessitate correctives on the electoral law. The Committee will be sole in judging the opportunity to modify those parts of the present electoral law in order to reach the desired result.

74. Constitutional law 1/1997, article 1.4.

75. See paragraph 3, pp. 4-6.

76. The Lega Nord is only one of the many leagues which have developed since the late 1980s throughout northern Italy. Among the others are the Liga Veneta and the Lega Toscana. All together have proclaimed the existence of a northern state called Padania for which they have elected a Parliament and have appointed an Executive Council.

77. Especially of article 5 which has been seen as the stumbling block for decentralization where it reads "The Republic, one and indivisible. . . ."

78. Advocated by northern Italians.

79. Maria Elisabetta de Franciscis, "Federalism in the United States: Sovereignty vs Autonomy" in «1989» Rivista di Diritto Pubblico e Scienze Politiche, Anno IV, n. 3/4, 1994, pp.779-801.

80. Cfr. footnote 33.

81. For all cfr. Temistocle Martinez, Diritto Costi-tuzionale (Milano Giuffrè, 1992), p. 158 et segg.

82. cfr. A. La Pergola, "Regionalismo, Federalismo e potere estero dello stato. Il caso Italiano ed il Diritto Comparato" in Federalismo, Regionalismo ed Autonomie Differenziate, Atti del Convegno Internazionale, Palermo-Taormina, 24-28 settembre 1985, p. 352.

83. Along these lines are, Lucatello, Crisafulli, Mortati and Paladin.

84. G. De Vergottini, "Modelli Comparati di Auto-nomie Locali" in Organizzazione e Diritto delle Regioni, Supplemento n. 4 del bollettino di legislazione e documen-tazione Regionale, 1982, pp. 73-102.

85. S. Labriola, "Progetto di Legge di Revisione della Parte Seconda della Costituzione" in Atti della Commissione Parlamentare per le Riforme Istituzionali, (Constitutional Law 1 /august 6, 1993) pp. 32-33.

86. The models of decentralization which the Bica-meral Committee will most likely study within Europe are Germany, Spain and Austria.

87. This solution would solve only apparently the secessionist requests of northern Italians, and therefore although technically the easiest it would be politically the most dangerous.

88. Italian Constitution, article 132 "It shall be allowed . . . to decide the merger between existing regions or the creation of new regions. . . ."

89. Italian Constitution, article 124 "A government commissioner, residing in the regional capital, shall oversee the exercise of State administrative functions and shall coordinate them with those exercised by the region."

90. Italian Constitution, article 81 "The Houses approve every year the budgets and expenditure accounts submitted by the government." If, indeed, Bicameralism will change, then too the role of both Houses in approving the budget should be modified.

91. Maria Elisabetta de Franciscis "The British Committee reform and the opposition: a viable model for Italy? " in Rassegna Parlamentare, Anno XXXVII, n. 4, ottobre-dicembre 1995, pp. 523-548.

92. Italian Constitution, article 92 "The President of the Republic nominates the President of the Council of Ministers and, on his proposal, the Ministers."; article 93 "The President of the Council of Ministers and the Ministers, before entering on his duties, shall be sworn in by the President of the Republic."

93. The majority of political parties are in favor of the French model, against it are the Partito Democratico delle Sinistre (PDS: ex Communist Party), the Partito Popolare Italiano (PPI: ex Christian Democratic Party) and the Rifondazione Comunista (PRC: Communist Party).

94. The manner in which the President of the Republic will be elected, perhaps with a run-off between the two highest vote getters, could represent a bulwark against both authoritarian and plebiscitarian schemes.

95. Italian Constitution, article 94 "The government must have the confidence of both Houses. Each House grants or withdraws its confidence. . . ." This will probably have to change if the federal model will be followed and Parliament modified in order more fully to mirror the territorial division of powers. In the majority of the European countries the vote of confidence is granted by only one House.

96. Italian Constitution, article 85 ". . . The president of the Chamber of Deputies shall summon a joint session of parliament and the regional delegates to elect the new President of the Republic." For an analysis of the electoral process and the powers of the President, see Maria Elisabetta de Franciscis "Electing the President: Italian Style" in Presidential Studies Quarterly, Volume XVI, n.3, Summer 1986, pp. 451- 459.

97. Italian Constitution, article 90 "The President of the Republic is not responsible for the acts performed in the exercise of his duties. . . ."

98. Italian Constitution, article 87.

99. Cfr. footnote 93.

100. Italian Constitution, articles 87 and 88 especially the latter, "The President of the Republic can . . . dissolve the Houses or any one of them. . . ."

101. See sub a, pp.11-13 and footnote 84.

102. Italian Constitution, article 56 (as amended by article 1 of Constitutional Law 2/ 9 February 1963) ". . . The number of Deputies is six hundred and thirty . . ."; and Italian Constitution, article 57 ( as amended by article 2 of Constitutional Law 3/ 27 December 1963) ". . . The number of Senators to be elected is three hundred and fifteen. . . ."

103. The intentions of the Constituent Assemblymen were correct from the constitutional engineering perspective based on an established political doctrine. In The United States this concept belongs to the political tradition as well, ". . . extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens." James Madison, The Federalist Papers, n. 10. However if this scheme had proven its validity throughout the centuries and in various countries, in Italy it failed because of the pathological evolution of partitocrazia.

104. Cfr. footnote 1.

105. As it has been already pointed out ( cfr. paragraph 4, pp. 6-8 especially footnote 46) Italy is the only country to implement "perfect" bicameralism which implies not only a perfect duplication of competences but also of representation. The objective of this archetype being that of establishing a second chamber to decant, or cool, issues and avoid the "spread of a general conflagration". James Madison, The Federalist Papers, n. 10.

106. As it is for the House of Lords in Great Britain or the Senado in Spain.

107. Which will probably be called federalism.

108. A new approach to the acceptance in the Italian Codes of laws approved by the Parliament of the European Union seems inevitable at this stage. Perhaps the latest developments within the German model of cooperation and participation of the Länder in the decisions of the Union on matters of their pertinence, could be taken in consideration for the new Italian Senate. Talitha Vassalli di Dachenhausen, " I Länder tedeschi e l’integrazione europea " in «1989» Rivista di Diritto Pubblico e Scienze Politiche, Anno IV, n. 3-4/1994, pp. 803-818.

109. Maria Elisabetta de Franciscis "The British Committee Reform and the Opposition: A viable model for Italy?" in Rassegna Parlamentare, Anno XXXVII, n.4, ottobre-dicembre 1995, pp. 523 - 548.

110. The first referendum was held in 1974 (12 May, 1974) on divorce. The recourse to this instrument has increased during more recent years. In fact, 2 questions were asked in 1978; 5 in 1981; 1 in 1985; 5 in 1987; 3 in 1990; 1 in 1991; 8 in 1993; and 12 in 1995. The committee on referendum lead by Marco Pannella has been preparing more questions. We do not yet know, how many of these will be accepted by the Constitutional Court; it should be safe however to say that another ten questions will be asked on referendum ballots this year.

111. Italian Constitution, article 75 "A popular referendum shall be held . . . when requested by five hundred thousand electors. . . ."

112. Italian Constitution, Title VI, articles 134-139.

113. Constitutional Law 1/ 11 March, 1953.

114. Maria Elisabetta de Franciscis and Rosella Zannini "Judicial Policy-Making in Italy: The Constitutional Court" in Mary L. Volcansek (ed.) Judicial Politics and Policy-Making in Western Europe (London: Frank Cass & Co. LTD, 1992), pp. 68-79.

115. This is what Italian jurists call a Court a quo. The Court a quo is the Court from which a cause has been removed to a higher Court, which is then called ad quem.

116. The judge of the lower Court who is hearing the case in which the question of a law’s constitutionality has been raised has the discretion to accept the issue and refer it to the Constitutional Court.

117. Maria Elisabetta de Franciscis and Rosella Zannini, "Judicial Policy-Making in Italy: The Constitutional Court", op. cit., p. 72.

118. For the redress of civil rights denied or hampered by a public officer or institution Spanish citizens have the Recurso de Amparo to the Tribunal de Garancias Constitucionales, to which Court, however they have access only after all other "normal" recourses have been attempted. Gabriella Duranti "Il Caso Spagnolo" in Silvano Labriola (ed.) Il Decentramento Politico negli Stati dell’Unione Europea (Rimini: Maggioli Editore, 1997), pp. 75-109. The same limitations stand for German citizens who want to approach the Bundesverfassungsgericht through the Verfassungsbeschwerde. Silvano Labriola "Il Caso Tedesco: La Grudgesetz del 1949" in Silvano Labriola (ed.) Il Decentramento Politico negli Stati dell’Unione Europea, pp. 27-74.

119. Italian Constitution, article 134 ". . . Conflicts arising from allocation of powers of the State and those allocated to the State and regions, and between regions. . . ."

120. Italian Constitution, article 135.

121. Also on this subject, as for previous ones, the experience of foreign countries could inspire the revision of the Italian Constitution. In Canada, for example, the judges of the Supreme Court are chosen proportionally on the basis of their Provincial origin, of their ethnic extraction and of the faith they profess. Québec enjoying a predominant role over the others. Maria Elisabetta de Franciscis "Il Caso del Québec" in Silvano Labriola (ed.) Il Decentramento Politico negli Stati dell’Unione Europea, pp. 157-189. In Belgium, the Court d’Arbitrage is appointed in a fashion which will represent evenly both the French and Flemish groups. Rosella Zannini "Il Caso Belga" in Silvano Labriola (ed.) Il Decentramento Politico negli Stati dell’Unione Europea, pp. 111-155.

122. Italian Constitution, articles 104 and 105.

123. This is an Italian version of Common Law.

124. The difensore civico was introduced in Italy with the new administrative powers and electoral law for towncouncil (Law 241) in 1990, integrated in 1995 by Law 273. The functions, appointing procedure and extension of his powers differ slightly from those of his equivalent in other countries.

125. In Italy there are just a few Independent Authorities such as the Authority on media; the Authority on free competition in the markets; and the Authority on Stock Exchange (CONSOB) to name the most important ones. However, it is not an easy task for law scholars to place such institution in any one category. Since they do not fall in either of the three classic branches of govern-ment. The legal debate which has just began in Italy on the specific genus of these institutions focuses on the question commonly asked in The United States of "Who guards the Guardians?"

126. Constitutional laws 1/1993 and 1/1997.

127. March 25, 1997.

128. Constitutional law 1/1997 article 1.4 "The Committee shall elaborate proposals to revise the Second Part of the Constitution, especially those dealing with the Form of State, the Form of Government and Bicameralism, and the System of Guarantees."

129. The procedure is not even unknown to the Constitution itself, since the course which was followed was the one prescribed in article 138 to approve constitu-tional laws. Cfr. paragraph 5, especially pp. 8 and 9.

130. The Italian Constitution is preceded by a section headed "Fundamental Principles" (article 1 through 12). Part I of the same is headed "Rights and Duties of Citizens" and is subdivided in four Titles: Civil Rights (the Italian Bill of Rights, article 13 through 28); Ethical and Social relations (family policies and subsidies, article 29 through 34); Economic relations (labour,unions and monopolies, article 35 through 47); and Political Rights (article 48 through 54).

131. This does not seem to be in the intentions either of the people or of the majority of the political parties, with a cautionary doubt about the Lega Nord.