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The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome

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The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome THE ITALIAN LAW JOURNAL An International Forum for the Critique of Italian Law Special Issue The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome edited by Paolo Passaglia www.theitalianlawjournal.it Special Guest Editor-in-Chief Paolo Passaglia (Università di Pisa) Editors-in-Chief Camilla Crea (Università degli Studi del Sannio) Andrea Federico (Università degli Studi di Salerno) Pasquale Femia (Seconda Università degli Studi di Napoli) Giovanni Perlingieri (Seconda Università degli Studi di Napoli) Advisory Board Guido Alpa (Università degli Studi di Roma La Sapienza) Lyrissa Barnett Lidsky (Levin College of Law - University of Florida) David Cabrelli (University of Edinburgh) Maria Celina Bodin de Moraes (Universidade do Estado do Rio de Janeiro) Guido Calabresi (Yale University) Carlos Fernández Sessarego (Pontificia Universidad Católica del Perú) Andreas Fischer-Lescano (Universität Bremen) Martin Gebauer (Universität Tübingen) Cecilia Gomez-Salvago Sanchez (Universidad de Sevilla) Xue Jun (Peking University) Peter Jung (Universität Basel) Peter Kindler (Ludwig-Maximilans Universitāt München) Michael Lehmann (LM Universität München; MPI, München) Heinz-Peter Mansel (Universität Köln) Paul Matthews (King’s College London) Jason Mazzone (University of Illinois Urbana-Champaign) Peter-Christian Müller-Graff (Ruprecht-Karls-Universität Heidelberg) Renato Nazzini (King’s College London) Pietro Perlingieri (Università degli Studi del Sannio) Otto Pfersmann (Ecole des Hautes Etudes en Sciences Sociales, CENJ, Paris) Ursula Stein (Technische Universität Dresden) Matthias E. Storme (University of Leuven) Gunther Teubner (Goethe Universität-Frankfurt am Main) Amanda Tyler (University of California, Berkeley) Mauricio Troncoso (Universitad Autónoma de Madrid) Verica Trstenjak (Universität Wien; MPI Luxembourg) Louis Vogel (Université Paris 2 Panthéon-Assas) Simon Whittaker (University of Oxford) Dai Yokimizo (Nagoya University Graduate School of Law) Lihong Zhang (East China University of Political Science and Law) Italian-European Lexicon Editor Vito Velluzzi (Università degli Studi di Milano) Linguistic Board Girolamo Tessuto - Chief Editor (Università degli Studi di Napoli Federico II) Vijay K. Bhatia - Senior Associate Editor (City University of Hong Kong) Giuliana Elena Garzone - Senior Associate Editor (Università degli Studi di Milano) Senior Associate Editors Rafael Porrata Doria (Temple University, Beasley School of Law) Michael R. Dimino, Sr. (Widener University Commonwealth Law School) Associate Editors Emilie K. Aguirre (University of California, Los Angeles) Claudia Amodio (Università degli Studi di Ferrara) Marco Bassini (Post-Doctoral Emile Noël Fellow, NYU School of Law) Luis R. Campos (Attorney, Dallas TX, USA) Salvatore Caserta (iCourts, University of Copenhagen) Alberto De Franceschi (Università degli Studi di Ferrara) Samuel Fulli-Lemaire (MPI for Comparative and International Private Law - Hamburg) Monica Iyer (Attorney, Milan) Francesco Longobucco (Università degli Studi di Roma 3) Robert McKay (Law Editor, Belfast, London and Rome) Sarah Pasetto (Italian Constitutional Court) Clare Frances Moran (Edinburgh Napier University) Francesco Quarta (Università degli Studi di Bologna) Filippo Valguarnera (University of Gothenburg) Kristen Zornada (LLM (Harvard), Lawyer, Sydney) Senior Executive Editors Stefano Deplano Luca Ettore Perriello Emanuella Prascina ISSN 2421-2156 April 2017 Table of Contents The Italian Law Journal Special Issue The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome edited by Paolo Passaglia PAOLO PASSAGLIA, Introduction 1 Part I Constitutional Reform in Italy: Past and Present JÖRG LUTHER, Learning Democracy from the History of Constitutional Reforms 9 GRAZIELLA ROMEO, The Italian Constitutional Reform of 2016: An ‘Exercise’ of Change at the Crossroad between Constitutional Maintenance and Innovation 31 GIACOMO DELLEDONNE AND GIUSEPPE MARTINICO, Yes or No? Mapping the Italian Academic Debate on the Constitutional Reform 49 ELETTRA STRADELLA, Italy after the Constitutional Referendum: Legal and Political Scenarios, from the Public Debate to the ‘Electoral Question’ 61 Part II Views on the Future of Constitutional Reform BENIAMINO CARAVITA DI TORITTO, The Constitutional Reform, between a Lost Opportunity and a Negative Outlook 85 I PAOLO CARROZZA, The Paradoxes of Constitutional Reform 91 UGO DE SIERVO, For an Effective Improvement of Our Institutions 105 GIUSEPPE FRANCO FERRARI, A Deadlock Difficult to Break 113 Part III Views from Abroad PETER J. LEYLAND, Referendums, Constitutional Reform and the Perils of Popular Sovereignty 121 JASON MAZZONE, Amendmentphobia 133 PASQUALE PASQUINO, The Un-constituent Power of the People. Article 138 of the Italian Constitution and Popular Referendum 139 DIAN SCHEFOLD, Constitutional Reform and Constitutional Unity 147 II The Italian Law Journal is sponsored by ‘Harvard Italian Law Association’ (HILA), by ‘Società Italiana degli Studiosi del diritto civile’ (SISDIC) and by ‘Società Italiana per la ricerca nel diritto comparato’ (SIRD). 1 The Italian Law Journal [Special Issue Introduction Paolo Passaglia I. The Italian Constitution was adopted by the Constituent Assembly in 1947 and entered into force on 1 January 1948. Today, almost seventy years later, Italy has changed considerably: society, the economy, politics and international relations have all undergone dramatic evolutions, as well as the legal system itself. Against this backdrop, the Constitution was amended several times, although always with regard to specific provisions. The only major reform was adopted in 2001, concerning the Regions (and, to a lesser extent, local authorities), the powers of which were strengthened in terms of both legislative and executive responsibilities. Other than this reform, it is difficult to find pivotal innovations in the constitutional text, to the point that in Italy, even the effects of the process of European integration and the changing landscape that this has entailed for Member States’ legal orders, was not – at least until 2001 – explicitly recognized with constitutional amendments, unlike the case of almost all of the other Member States. The membership of the European Communities (today, of the European Union) was accompanied with and enabled by legal reforms coupled with changes in constitutional interpretation, without any reforms affecting the text of the Constitution. The opposition between the rather static constitutional text and the dynamic system on which the Constitution relies has given rise to the question of whether the Constitution should be adapted to the new societal inputs. Compared to most other European legal systems, where significant constitutional changes (as well as reforms aiming to formally ‘maintain’ the relevance of the text) are rather frequently carried out, the Italian rejection of changes appears somewhat peculiar. This peculiarity, however, does not necessarily imply an obstinate attachment to the past: other ancient and static constitutions – among which the United States (US) experience more than any other, of course – may easily demonstrate that old texts can perfectly fit modern needs. These conflicting views fuel the debate on whether the Italian Constitution should be considered a text that requires significant amendments, one that Full Professor of Comparative Law, University of Pisa. Pro-tempore Scientific Coordinator of the Comparative Law Area, Research Service, Constitutional Court of the Italian Republic. 2017] Introduction 2 should be subjected only to minor specific changes, or rather that should remain in its current form. This debate has been alive at least since the beginning of the 1980s, with several attempts to pass major reforms occupying the political agenda from time to time, drawing the attention of constitutional legal scholars and, occasionally, also of the public. II. The constitutional referendum held on 4 December 2016 was the culminating point of one of the most heated seasons of this longstanding debate. Several factors contributed to make this referendum a possible turning point in Italian constitutional and political history. First, the reform that was passed by the Parliament and submitted to the people was remarkably ambitious, because it affected almost the entirety of the Second Part of the Constitution, concerning the ‘Organization of the Republic’. If the reform had been adopted, the 1947 Constitution would have changed dramatically, even though the provisions regarding the recognition and the protection of rights and freedoms (located mostly in the First Part of the Constitution) would have remained unaltered. Second, all moments when the people directly expresses its will are crucial moments for any democratic system: in this case, the sovereign was called upon to decide, for the third time in fifteen years,1 on the contents of the Supreme Law of the Land. The choice was obviously of the greatest importance, and the decision-making process, resulting in the alternative between a simple ‘yes’ (approval of the reform) or a simple ‘no’ (its rejection), made it especially dramatic and solemn. Third, because of the significance of the reform, the centre-left Government and, in particular, the President of the Council of Ministers, Matteo Renzi, connected the outcome of the referendum to their own destiny. The vote on the constitutional reform therefore became also a vote of ‘popular confidence’ on Renzi, something that may bring to mind similar events
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