Università per Stranieri di Perugia
Editors’ Note: This is the second part of a two-part post to mark the 70th anniversary of the Constitution of Italy. Part I, published on Wednesday 18 July, contemplated the trajectory of Italy's Constitution since 1948, from inaugurating a new democracy, to delayed implementation and weathering serious challenges .
This also leads to reflections on the problems shown by the Charter over time and its future prospects. In the first place, from the experience of the approved constitutional revisions and from those, instead, rejected, it emerges how the Italian system of constitutional revision is largely in conformity with that model which can be defined, at comparative level, as “constitutional maintenance”, rather than the different model of radical (or total) revision of the text.
In fact, over the years, various, limited and specific amendments to the constitutional text have been approved with the procedure set forth in article 138 of the Constitution (e.g. the revision of article 27, article 81 or article 111 of the Constitution), but always with the super-majority of 2/3 of the members of Parliament, without, therefore, being able to give rise to the constitutional referendum, possible only in the event that, in the second deliberation of the Chambers, the absolute majority of those entitled to vote is reached.
In the cases where, instead, radical modifications to the constitutional structure have been proposed, relative to a very large and heterogeneous number of constitutional provisions of the second part of the text – as happened in 2006 and 2016 – the successive oppositional popular referendums have decreed its sound rejection, in both cases with majorities close to 60% of the participants in the vote. The proposed reforms, which radically affected the constitutional conformation of the form of government and the model of State itself, were therefore rejected by a large majority, confirming, also in this way, the strength and vitality of the Constitution.
It should be considered, in this regard, that there is a broad convergence of views among Italian constitutionalists and by the Constitutional Court (judgment no. 1146/1988) regarding the question of the limits to the constitutional revision, which are not reduced to the sole, expressed provision of article 139 of the Constitution, whereby «The form of Republic shall not be a matter for constitutional amendment», but also consist of implied limitations, represented by those constitutional principles that characterize the fundamental features of the Constitution and whose modification would be possible only through a new constituent process.
The dysfunctions and difficulties of the political and institutional system, which have become more acute in recent years and have been pointed out for some time by political observers, therefore require intervention not with drastic constitutional changes, but instead with reforms of ordinary legislation (electoral system; implementation of article 49 of the Constitution on political parties; rules on the financing of political parties and movements; fight against corruption) and with an overall change, primarily of a cultural and ethical nature, of political action and participation.
The constitutional revisions, if considered necessary, must, first of all, be as much as possible shared by the various forces represented in Parliament and be carried out according to an amending institutional logic, limited to precise improvements of the text and not of its overall distortion, or without affecting or altering them, even on the fundamental principles that constitute the solid cornerstones of the constitutional structure.
Moreover, according to contemporary democratic constitutionalism, Constitutions aspire to last – unlike what was indicated in the French revolutionary texts of the late eighteenth century – well beyond the generation that has decided and written the Fundamental Charter.
As recently observed in the Report on Constitutional Amendment by the Venice Commission, “old age is not an argument against a national constitution. On the contrary, constitutional stability over time may be greatly beneficial to democratic governance, and the symbolic value of an old constitutional text may serve positive and important functions. At the same time however, old constitutional texts are in particular need of flexibility in order to adjust to transformations in society, if they are to retain their importance as a relevant and operational framework for political action”.
The Italian Constitution has just completed its first seventy years of life: we still need, for the future, a wise and careful work of convinced and effective adherence to its fundamental principles and values.
Francesco Duranti is Associate Professor of Comparative Public Law at the Università per Stranieri di Perugia (Italy).