affiliated to the International Association of Constitutional Law
It is referendums’ season. After Brexit and the Hungarian referendum on the European migrants’ resettlement plans (the so called ‘quota referendum’), an important constitutional plebiscite will take place in Italy on the 4th of December. The subject matter of the referendum is vast and, formally, affects more than 40 articles of the constitution out of 139. Its key tenets are the following: transformation of the Senate from an elected chamber to a representative body of regional and municipal institutions; modification of the Senate’s functions and, as a consequence, transformation of the legislative process from a symmetrical bicameralism, where both chambers have to vote the confidence to the government and approve statutes, to a system where only the lower chamber (Camera dei deputati) entertains a relation of confidence with the government, and the Senate is a co-legislator only in certain subjects (some of which are very important: for example, future constitutional change and adoption and implementation of EU law); the government obtains a defined competence for initiating legislation and timing for parliamentary scrutiny is limited and constrained; the dynamics of the appointments for institutions of guarantee (President of the republic, constitutional court, the autonomous and independent governing body of the judicial order) change in a sensible way; powers previously devolved to the regions are repatriated to the State in order to avoid the confusion generated by the current constitutional arrangements. Overall, the size of this constitutional change is remarkable and can hardly be described as a cosmetic exercise. It is impossible in this space to discuss the intricacies and technicalities of these changes. Suffice to note that the two main principles behind it are the stabilization of the government (and the rationalisation of its relation with parliament) and the restructuring of State-periphery relations.
But beyond the content of the reform, which is obviously important, there is something more to be learned by observing the process of its approval and the eventual request of a referendum. The two levels (content and process) cannot be easily disentangled because the referendum is the culmination of a process of constitutional change supported mostly, at this stage, by the current government and contested by the political opposition and other social forces. So, the end result of the constitutional process – a more stable executive – is already at stake in the referendum itself, given that the main proponent of the change is government itself. Under certain conditions, a victory would have a performative value: it would strengthen the government by coagulating a political and social basis around it. From this point of view, the referendum is being deployed as a contest for building a political regime around a block of forces whose strength, otherwise, would not be sufficient to perform an ordering function. It is not by chance that the proposed constitutional change was coupled from the beginning with a new electoral law (an ordinary statute) which would grant the government a consistent majority in the lower house. Yet, it should be noted that the trajectory that arrived at a demand for a referendum was diverted because the initial stage of the drafting and the first parliamentary vote were supported by part of the opposition as well. Later, this support was withdrawn and the proposal was voted by a simple majority, basically the same political majority supporting the current government.
Formally, the procedure established by art. 138 of the Italian constitution for the approval of constitutional changes has been followed by the government. In case of a vote without qualified majority (the threshold being two third of parliamentarians in each chamber), there is a possibility, for a number of parliamentarians (one fifth of one of the two chambers) or citizens (five hundred thousand signatures), to ask for a referendum on the proposed change. However, the recent use of this instrument has turned the original rationale of the procedure upside down. As demonstrated by a number of elements, Art. 138 was conceived as an institutional guarantee against abusive transformations of the constitution. It is located, in the Italian constitution, in the same section (‘Constitutional guarantees’) where the constitutional court (another ‘guardian’ of the constitution) is provided for. A look at the debates in the Italian constituent assembly shows that this was also the intention of the constitution’s drafters. The idea was that, with the proportional electoral system in place at the time, a vote of two third of parliamentarians would have certainly corresponded to an absolute majority of the population represented in support of the constitutional change and, as a consequence, the referendum could be ruled out. Yet, already in 2001, the constitutional referendum provided for by art 138 had been used as a ratification of the government’s proposal, in a context where proportional representation had been replaced by a mild form of majoritarian representation. In that case, citizens were asked to vote on a rather important reform of the relation between State and regions and the reform was approved, but with the participation of only 34% of the citizenry. A different case is represented by the other referendum held, in 2006, on a comprehensive reform of the second part of the Constitution. The referendum was asked, following the spirit of the law, by the opposition and the outcome was a rejection of the proposal, with the participation of 52% of the citizenry. Nonetheless, with the forthcoming vote, it is possible to observe a pattern emerging: constitutional change becomes increasingly the province of executive power, which drafts the proposal and gathers the political capital necessary to push it through the chambers, and the referendum is used as a consolidating instrument rather than a device for minority protection.
Beyond the procedural aspects, the material dimension is also essential in order to understand fully the aim of this referendum. Following three of Stephen Tierney’s concerns on the legitimacy of constitutional referendums, one can detect traces of elite manipulation (in particular in the way the question on which citizens are called to vote has been framed), but it is more accurate to describe the path toward the consultation as a form of elite consolidation. In the current Italian context, victory in the referendum means consolidation of a political regime revolving around a block of political forces and fragments of sectorial interests supporting the constitutional change. Here, one cannot understand what is at stake in the process without making reference to one of the other elements highlighted by Tierney’s analysis, that is, external influence. The proposed constitutional change is perceived as extremely positive by European partners and by the European Union because it would strengthen the executive and make it more reliable both in intergovernmental contexts (which, after the Euro-crisis are more and more important) and as the political guarantor of a heavily indebted State within the constraints imposed by a common monetary area. Furthermore, securing the constitutional change might give to the government more leverage for bargaining at the European level, and in particular with the European Commission. The reform could be offered in exchange of further flexibility on the managing of deficit and public debt. Yet, it is difficult to measure how autonomous the government will be from parliament because the new Senate retains full competences in EU affairs, including the power to veto the ratification of new EU treaties.
The final aspect to be taken into account is the level and the quality of citizens’ participation. While on the quality of the deliberative process is too early to pass a judgment, it is already possible to remark a potential issue for the outcome of the referendum. Art.138 does not require a minimum threshold for the validity of the vote. The reform might be approved or rejected even if only, say, 10% of the voters go to the polls. The absence of a mandatory minimum threshold of voters might still create a problem for the winners. In fact, if the referendum is used as a consolidating device in the absence of the representative role once played, in Italian constitutionalism, by political parties, then a certain level of citizenry mobilisation might be necessary in order to support (at least in terms of formal legitimacy) the effectiveness of the constitutional change. In fact, an old lesson from the history of Italian constitutional doctrine is that behind each constitutional order there are some dominant forces bearing it. Therefore, it is predictable that the percentage of voters and the way they have been aggregated will have a substantial impact on the consolidation of the new constitutional regime. Here, a genuine question emerges: are constitutional referendums instruments capable of performing the function played once by collective subjects such as parties, trade unions and movements? Can they act as catalysts for the condensation of social forces into the subject bearer of constitution-making power? In the Italian case, the jury might still be out, but serious doubts are definitely legitimate.
Marco Goldoni, Senior Lecturer, Glasgow University
(Suggested citation: M. Goldoni, ‘Constitutional Referendums as Vectors of Regime-building: Observations from the Italian Case’, U.K. Const. L. Blog (21st Oct 2016) (available at https://ukconstitutionallaw.org/))