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Italy: Constitutional Referendum Scheduled

(Nov. 18, 2016) On December 4, 2016, Italy is scheduled to hold a major constitutional referendum.  (Referendum, si vota il 4 dicembre. Renzi: «La partita è ora» [Referendum, the Vote Takes Place on December 4. Renzi: ‘The Match Is Now’], CORRIERE DELLA SERA (Sept. 26, 2016).)  The proposed amendments would drastically change the nature of the political and constitutional system and are intended to bring stability to a country that “has had 63 governments in the 70 years since the birth of the Republic.”  (J.H., Why Is Italy’s Constitutional Referendum Important?, ECONOMIST (Sept. 27, 2016).)

On April 12, 2016, the Italian Chamber of Deputies overwhelmingly approved the text of the proposed constitutional amendments.  (Agnese Ananasso, Riforma Costituzionale, Via Libera della Camera: Addio al Bicameralismo Perfetto. Ora Il Referendum [Constitutional Amendment, Free Pathway to the Chamber: Goodbye to the Perfect Bi-Cameralism. Now the Referendum], REPUBBLICA.IT (Apr. 12, 2016).)

Under the current Constitution, “[t]he legislative function is exercised collectively by both Houses,”  (Constitution of the Italian Republic (Apr. 2009), art. 70, Senate website.), and the Constitution establishes a delicate and complicated system for the distribution of powers between the national government and Italy’s 20 Regions.  (Id. Title V, arts. 114-133; Regions of Italy in Map, MAPS OF WORLD.COM (last visited Nov. 16, 2016).)

The proposed constitutional amendments address two main issues: the composition and powers of the Italian Parliament, and the distribution of powers between the national government and the Regions.  Specifically, the text calls for:

  • Changes to Bicameralism: The amendment would put an end to the parity system established by the 1948 Constitution according to which both chambers of Parliament approved government action and legislation; under the new constitutional provisions, only the Chamber of Deputies would have the power to grant or withdraw the mandate of the government and exercise most legislative functions. (La Riforma costituzionale. Disegno di legge constituzionale, A.C. 2613-D [The Constitutional Amendment. Constitutional Bill, A.C. 2613-D], art. 1, ¶ 4, XVII LEGISLATURA, Camera dei deputati, Servizio Studi.)
  • Different Composition of and Role for the Senate: Under the current rules, the Senate is elected on a regional basis, with several exceptions, and the number of Senators is 315 (Constitution of the Italian Republic, art. 57).  The new rules would provide that the Senate is to represent “the territorial institutions,” and would be composed of 100 members, 95 of whom would be elected by the Regions; 21 of these 95 members would be mayors and elected by the Regions, while five of the 100 members would be selected the President of the Republic. (Constitutional Amendment, art. 2 ¶ 1.)  In addition, the former presidents of the Republic serve as Senators for life.  (Id., art. 3 ¶ 1.)  The Senate would maintain its current constitutional powers over government appointments: its joint power with the Chamber of Deputies concerning the relations between the state, the European Union, and territorial entities and authority in other matters, i.e., amendment of the Constitution, handling of legislation on linguistic minorities, popular referenda, and electoral legislation.  However, under the constitutional amendments, the Senate’s power would be subordinated to that of the Chamber of Deputies in a series of key constitutional areas: matters of exclusive legislative competence of the Regions, budget legislation, declarations of war, amnesties and pardons, and international treaties (with the exception of EU treaties).  Under the new system, unlike Chamber members, Senators would serve without compensation.  (Id.)
  • Division of Powers Between the National Government and the Regions: The amendment would eliminate the constitutional provisions on “concurring legislation,” that is, matters in which the agreement of both the national government and the Regions is necessary to pass legislation. (Constitution of the Italian Republic, art. 117.)  The new rules would grant exclusive power to the central government over matters that were previously subject to concurring powers, such as insurance markets, competition law, pensions, employment protection, civil protection, cultural property, and tourism.  Other areas would remain within the purview of the Regions: health protection, social policies and food security, and education.  (Constitutional Amendment, art. 31 ¶ 2(m).)
  • The proposed constitutional amendments would affect the election of the President of the Republic.  The system whereby the (currently 59) regional delegates are eligible to vote for the election of the President of the Republic would be eliminated. Only Chamber Members and Senators would have the right to vote for the President’s election.  The amendment would establish new quorum rules in case there is no majority vote.  The President would be able to dissolve only the Chamber of Deputies, not the Senate.  The President of the Chamber of Deputies would be the next in command after the President of the Republic.  (Id. art. 24 ¶ 1; Alessio Sgherza, Scheda / La nuova Costituzione e il nuovo Senato (versione solo testo), [Chart / The New Constitution and the New Senate (Text Only Version)], REPPUBLICA.IT (Apr. 12, 2016).)
  • Expedited Legislative Process: The amendment would allow the government to request a preferential method of approval of draft legislation that is “essential for the implementation of the government’s program.” (Constitutional Amendment, art. 12 ¶ 7.)  The maximum duration of the new legislative procedure would 70 days.  However, the expedited legislative process would not be available for legislation concerning the powers of the Senate, electoral laws, the ratification of international treaties, legislation on amnesty, pardon, and the national budget.  (Id.)
  • Abolition of the Provinces: The amendment would eliminate the current provinces established by the Constitution.  (Id. arts. 29-38.)
  • Popular Initiative and Other Popular Referenda: The amendment would raise to 150,000, from the current 50,000, the minimum number of signatures required for a popular legislative initiative.  (Id. art. 11 ¶ 3.) The amendment also provides that repealing referenda are valid with the participation of a minimum of 50% of those with a right to vote, but if at least 800,000 voters request the referendum, the quorum goes down to 50% of those who voted in the last elections. Two new types of referenda would be created: the propositive referendum, by which citizens may submit a legislative bill to Parliament for its consideration, and the consultative referendum, by which Parliament would receive the voters’ opinion on a given matter.  (Id. art. 15 ¶ 4.)
  • Gender Quotas: The amended Constitution would require that legislation be adopted to establish provisions for the election of members of the Chamber of Deputies that promote a representative balance between women and men; similar provisions would be established for elections to the Regional Councils  (Id. 35 ¶ 1.)
  • Constitutional Consultation: Three of the five Constitutional Court judges would be appointed by the Chamber of Deputies and two by the Senate.  (Id. 37 ¶ 1.)
  • The amended Constitution would also permit Italian citizens residing overseas and registered as members of the Italian Population Living Abroad (Anagrafe Italiani residenti all’estero or AIRE) to exercise their right to vote in the place of their residence.  (Anagrafe Italiani residenti all’estero (AIRE), Ministry of Foreign Affairs and International Cooperation website (last visited Nov. 16, 2016); Voto Italiani all’Estero [Italian Vote Overseas], Ministry of Foreign Affairs and International Cooperation website (last visited Nov. 16, 2016).)