Can Europe Make It?

Constitutional reform – the creeping transformation of Italy

In the summer lethargy, the Italian government is attempting to pass new constitutional amendments that would take power away from Parliament and concentrate it in the executive branch's hands. Public debate has been avoided, despite potentially dramatic consequences.

James Walston
12 August 2013
President Napolitano and PM Letta. Flickr/Enrico Letta. Some rights reserved.

President Napolitano and PM Letta. Flickr/Enrico Letta. Some rights reserved.

Italy’s summer lethargy and the open warfare over Berlusconi’s recent conviction are masking the proposal for a radical constitutional change. If passed, it will unleash the country’s least attractive instincts and give them a constitutional validity; for unfortunately behind most political initiatives in Italy is the acceptance of weakly checked power and the desire to have someone take charge and solve the country’s problems.

At the moment a structural change to both the institutions of the constitution and its intentions is under way. Its implementation would complete the de facto changes which have happened over the last couple of years. All with almost no debate in Italy - and none at all abroad.

Last month, the Five Star Movement (M5S) brought the issue to the top of their agenda and Il Fatto Quotidiano has launched a petition hoping to reach half a million signatures but for the rest, the heat wave (appropriately named Charon, the ferryman to the Inferno) seems to have stifled any discussion. Of course, there's also the fact that most of these constitunational issues are arcane; none will change the number of jobs available or the price of pasta, hence the general lack of discussion.

The first step is a bill, the DDL 813 passed by the Senate last month, which until an M5S filibuster, was due to go before the Chamber of Deputies before the end of July. It is a constitutional amendment which would make future amendments even easier. All codified constitutions are in some way “entrenched”; they are more difficult to change than normal legislation because constitutions should not be subject to the political fads and fashions of the moment. In Italy, an amendment currently needs to be passed by both houses twice with at least three months between the readings, which is still a very simple and rapid process compared to how constitutions are amended in other countries.

The present bill would change article 138, which regulates constitutional amendments. It would cut the three months to one and set up a bicameral commission which would act in a similar way to a constituent assembly, following a tight schedule. In practice, it is a blueprint for a new constitution.

This is an unusual government bill. It is explicitly part of the government’s 18-month reform programme and includes a very tight schedule as part of the constitutional amendment. The bicameral committee set up by the amendment must be formed within fifteen days of the law’s passage. If not, the Speakers will appoint members, and the committee must start work within 30 days. This is also very unusual as constitutional amendments are normally excluded from emergency measures; they encourage reflection rather than precipitated action. But not in this case.

Prime Minister Enrico Letta had hoped that the bill would be passed by the Chamber at the end of July - so that the two Chambers could re-pass it in early November and the commission could start its work before the end of that month. This would be rapid for ordinary legislation, for a constitutional amendment it is supersonic. The M5S filbuster has probably delayed the first passage before the Chamber till September.

This first amendment would then allow the substantial reforms to be passed rapidly. There are two elements in the reform proposals: the nature and relationship between the two chambers of Parliament and the nature of the state and government itself.

On the first score, no one would seriously argue in favour of maintaining Italy’s perfect bicameralism, where the two chambers have equal power. This flaw and potential wrench in the works has been pointed out since the constitution was passed in 1948, but it was only in February this year that there actually were different majorities in the Chamber and the Senate. The US is used to the concept of gridlock between the two houses, but a presidential system can deal with it – a parliamentary system, which depends on the executive having the confidence of both houses, cannot.

Nor is there much explicit defence of the numbers of parliamentarians: 630 plus 315, more than most comparable systems. There could, of course, well be stalling tactics as some senators at least do not like the idea of reducing their powers while both houses are nervous about reducing their numbers. But the other suggestions are much more controversial.

There seems to be a consensus among government party leaders (Democratic Party (PD), People of Freedom (PdL) and Civic Choice (SC) that the executive should be greatly strengthened - either by introducing a presidential system, or more likely, something similar to the French semi-presidential system. They would at least like to see a directly elected head of state with the implication that the new president would have much greater legitimacy and therefore power.

The vision is still vague but their idea is to confirm President Napolitano’s de facto increase in power, to enhance it and enshrine it in the revised constitution.

Strictly speaking, Napolitano’s job is mostly symbolic. Yet, for two years now, he has been increasingly active in everyday politics and party issues. Prime Minister Letta now consults with Napolitano on all major issues and plenty of minor ones too. The reforms would only make these changes constitutional.

Three weeks ago, Napolitano admonished parliament not to support a no confidence motion against the minister of the Interior, Angelino Alfano. The previous week, the Supreme Council of Defence, an advisory body chaired by the president, issued a statement saying that Parliament had no veto on defence matters, in particular on the decision to purchase 90 F35s. There was no protest from the legislature on either count.

Parliament has already been seriously weakened by the electoral system which gives party leaders the control over who is elected and who is not. Candidates do not campaign and have no link with any territory. They are beholden either to Berlusconi, Monti or Grillo or to the PD apparatus.

In 1946-7 the Constituent Assembly drew up a document which gave the legislature the most power. Italy had just come out of 20 years of dictatorship and the goal was to curb the executive. Today, neither Berlusconi, nor his successors, nor the PD’s aspiring presidents are going to become a new Mussolini. But the damage which Berlusconi has wrought over the last 20 years and Napolitano’s inexorable slicing away at the legislature’s powers are both cause for concern, a concern which is only shown by a few senior constitutional lawyers. There is no debate.

Without a debate, the only hope to delay this hurried process is the other Italian vice, getting stuck in a bureaucratic swamp, or the most likely option at the moment, that the coalition government falls because of the Berlusconi conviction. But the proposals have been made and could return with the next unholy alliance between centre-left and centre-right. Italy has plenty of problems but they will not be resolved by concentrating power in the hands of a president. 

This article is an updated version of a post originally published on 29 July on the author's blog, Italian Politics with Walston.

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