Italy

The International Review of Constitutional Reform EDITED BY L U Í S R O B E R T O B A R R O S O and R I C H A R D A L B E R T 2022 EDITORS CO-EDITORS LUÍS ROBERTO BARROSO President, Federal Supreme Court of Brazil Professor of Constitutional Law, Rio de Janeiro State University RICHARD ALBERT Director of Constitutional Studies William Stamps Farish Professor in Law Professor of Government The University of Texas at Austin A S S O C I AT E E D I T O R S MATHEUS DE SOUZA DEPIERI LL.M. Candidate, University of Cambridge (2024) LL.B., University of Brasília (2021) Director of the Center for Comparative Constitutional Studies (CECC/UnB) BRUNO SANTOS CUNHA PhD Candidate, Federal University of Pernambuco, Brazil Master of Laws, University of Michigan Law School (2017) Master of Laws, University of São Paulo (2014) ELISA AMORIM BOAVENTURA LL.B., University of Brasília (2022) Director of the Center for Comparative Constitutional Studies (CECC/UnB) JÚLIA QUINTÃO FRADE LL.B., University of Brasília (2023) Director of the Center for Comparative Constitutional Studies (CECC/UnB) DAVID SOBREIRA Master of Laws Candidate, Christus University, Brazil MARIA LETÍCIA BORGES LL.B., University of Brasília (2022) Director of the Center for Comparative Constitutional Studies (CECC/UnB) 2 The International Review of Constitutional Reform | 2022 Hosted, Published, and Sponsored by the Program on Constitutional Studies at the University of Texas at Austin and the International Forum on the Future of Constitutionalism ISBN 978-1-7374527-4-4 The International Review of Constitutional Reform | 2022 3 CONTRIBUTORS 4 Emmanuel Saffa Abdulai | Sierra Leone Vahit Biçak | Turkey University of Sierra Leone Bicak Law, Mediation, Arbitration Centre Karem Sayed Aboelazm | Egypt Geerten Boogaard | The Netherlands Umm Al Quwain University Leiden University Fernando Acunha | Brazil Camille Bordere | France Centro Universitário de Brasília Université de Bordeaux Giorgi Alaverdashvili | Georgia Alexander Brade | Germany Ivane Javakhishvili Tbilisi State University Leipzig University Eyad Ayed Alsamhan | Jordan Patrik Bremdal | Sweden Brigham Young University, Judicial Council of Jordan Uppsala University Aurela Anastasi | Albania Kornkanok Buawichien | Thailand University of Tirana Thammasat University Gabriel Arishe | Nigeria Vincent Bujňák | Slovakia University of Benin Comenius University Tri Sulistianing Astuti | Indonesia Rodrigo Lobo Canalli | Eswatini Universitas Islam Internasional Indonesia (UIII) NYU School of Law Fátima Milena Atacushi-Gárcia | Ecuador Eloy Viera Cãnive | Cuba Universidad Central del Ecuador Gobierno y Análisis Político Osayd Awawda | Palestine Sumit Chatterjee | Afghanistan Hebron University Karnataka High Court Jean-Claude Barakamfitiye | Burundi Martin Chipofya | Malawi Burundi Bar Association (BBA) & Burundi Bridges to Justice Malawi Judiciary Kamil Baraník | Slovakia Sachi Chopra | Pakistan Matej Bel University Advocate High Court of Delhi Roel Becker | The Netherlands Vera Karam de Chueiri | Brazil Leiden University Federal University of Paraná Eva Maria Belser | Switzerland Ylenia Maria Citino | Italy University of Fribourg Luiss Guido Carli University Jaroslav Benák | Czech Republic Tommy Corbeil | Canada Masaryk University Université du Québec à Montréal Juliano Zaiden Benvindo | Brazil Marie DeCock | Belgium University of Brasília Hasselt University, Maastricht University Elisa Bertolini | San Marino Heloísa Orsi Koch Delgado | Angola Bocconi University University of Rio Grande do Sul The International Review of Constitutional Reform | 2022 Giacomo Delledonne | Italy Ramon Jorge | Dominican Republic Scuola Superiore Sant’Anna Federico Henriquez y Carvajal University Luthfi Widagdo Eddyono | Indonesia Balingene Kahombo | Democratic Republic of Congo Constitutional Court of the Republic of Indonesia University of Gona Gabrielle Elliott-Williams | Jamaica Thato Katiba | Lesotho University of the West Indies at Mona National University of Lesotho Jeffrey Foreman | Jamaica Paul Kildea | Australia Attorney at law University of New South Wales Eduardo Gregorio Esteva-Gallicchio | Uruguay Masatoshi Kokubo | Japan Catholic University of Uruguay, University of Montevideo Keio University Sooraj Gemini | India Keigo Komamura | Japan Central University of Kerala Keio University Miguel Godoy | Brazil Melissa A. Kotulski | Ireland Federal University of Paraná International Attestations, LLC Mario Gomez | Sri-Lanka Jaka Kukavica | Slovenia International Centre for Ethnic Studies European University Institute Jurgen Goossens | Belgium Anubhav Kumar | Pakistan Utrecht University Advocate Supreme Court of India Susanne Gstoettner | Austria Virginie Kuoch | Hong Kong Sigmund Freud University Université Paris 1 Panthéon-Sorbonne Dave Guénette | Canada Konrad Lachmayer | Austria Université de Sherbrooke Sigmund Freud University Muhammad Ekramul Haque | Bangladesh Mugambi Laibuta | Kenya University of Dhaka Kenya School of Law Jau-Yuan Hwang | Taiwan Anabela Costa Leão | Portugal Constitutional Court of Taiwan Universidade do Porto Eveliina Ignatius | Finland Rawin Leelapatana | Thailand University of Helsinki Chulalongkorn University Harun Iseric | Bosnia and Herzegovina Ntsane K Lesenyeho | Lesotho University of Sarajevo National University of Lesotho Dionne Jackson-Miller | Jamaica Jonathan Liljeblad | Myanmar University of the West Indies at Mona Australian National University Anmol Jain | India Chien-Chih Lin | Taiwan Melbourne Law School Academia Sinica The International Review of Constitutional Reform | 2022 5 Cheng Long | China Tuomas Ojanen | Finland Shandong University University of Helsinki Konstantinos Margaritis | Greece Magdalena Ortega | Chile Hellenic Open University Centro de Estudios Públicos Ali Mashraf | Bangladesh Eleni Palioura | Greece East West University National and Kapodistrian University of Athens Catherine Mathieu | Canada Costas Paraskeva | Cyprus Université du Québec à Montréal University of Cyprus Simon Mazidi | Switzerland Johanna Cilano Pelaez | Cuba University of Fribourg Tecnológico de Monterrey János Mécs | Hungary Binendri Perera | Sri-Lanka ELTE Eötvös Loránd University University of Colombo Eleni Meleagrou | Cyprus Pablo German Petraglia | Argentina Solicitor (UK), Advocate practicing Human Rights (Cyprus) National University of Northwestern Buenos Aires Jolita Miliuviene | Lithuania Molefhi Phorego | Botswana Mykolas Romeris University Nelson Mandela University Matija Milos | Croatia José Pina-Delgado | Cape Verde University of Rijeka Constitutional Court of Cabo Verde Mikhail Minakov | Ukraine Andrea Pozas-Loyo | Mexico Kennan Institute, Woodrow Wilson International Center for Scholars Universidad Nacional Autónoma de México Chris Monaghan | United Kingdom Zoltán Pozsár-Szentmiklósy | Hungary University of Worcester ELTE Eötvös Loránd University Jose Luis Castro Montero | Ecuador Ana Rita Babo Pinto | Portugal Universidad Central del Ecuador, Constitutional Court of Ecuador Universidade do Porto Rafael Jerez Moreno | Honduras Daniel Rivas-Ramírez | Colombia Honduran Business Organization Researcher Yacine Ben Chaabane Mousli | Tunisia Paula Robledo Silva | Colombia University Paris Panthéon Assas Universidad Externado de Colombia Satang Nabaneh | Gambia Edgar Ortiz Romero | Guatemala Law Hub Gambia Universidad Francisco Marroquín and Fundación Libertad y Desarrollo Luisa Neto | Portugal Universidade do Porto Yaniv Roznai | Israel Reichman University Wilson Seraine Neto | Mozambique University of Coimbra Daniel Ruhweza | Uganda Makerere University Inês Neves | Portugal Universidade do Porto Camilo Saavedra-Herrera | Mexico Universidad Nacional Autónoma de México 6 The International Review of Constitutional Reform | 2022 Marieta Safta | Romania Solomon Ukhuegbe | Nigeria Titu Maiorescu University American Heritage University of Southern California Ana Samobor | Slovenia Pablo Valdivieso-Kastner | Ecuador University of Ljubljana University of Oxford Janaína Rigo Santin | Angola Vinh Vokhanh | Vietnam University of Passo Fundo and the University of Caxias do Sul National Academy for Social Sciences of Vietnam Carola Sauer | Luxembourg Arta Vorpsi | Albania Council of State University of Tirana Amal Sethi | Afghanistan Giao Vucong | Vietnam University of Hamburg Vietnam National University Aditi Vishwas Sheth | Afghnistan Larissa Whittingham | United States of America National Law School of India University Boston College Idan Siboni | Israel Edward Willis | New Zealand Reichman University University of Otago Bradley Slade | South Africa Jens Woelk | Bosnia and Herzegovina Stellenbosch University University of Trento Bernadette Somody | Hungary Rico Yearwood | Barbados ELTE Eötvös Loránd University University of the West Indies, Cave Hill Campus Sebastián Soto | Chile Ronnie Yearwood | Barbados Pontificia Universidad Católica de Chile University of the West Indies, Cave Hill Campus Yen-Tu Su | Taiwan Satoshi Yokodaido | Japan Academia Sinica Keio University Mai Sugaya | Japan Sophia Seddiq Zai | Afghanistan Takushoku University University of Hamburg Sacha Sydoryk | France Jiang Zhaoxin | China Université de Tours Shandong University, The Chinese University of Hong Kong Carlos Teixeira | Angola Vedran Zlatic | Croatia University of Agostinho Neto, Constitutional Court in Angola University of Split Dario Elia Tosi | Malta Dunia Prince Zongwe | Namibia and the Republic of the Congo University of Turin Alliance University, Walter Sisulu University Neha Tripathi | Pakistan Maharashtra National Law University Swapnil Tripathi | India University of Oxford Vasileios G. Tzemos | Greece University of Thessaly The International Review of Constitutional Reform | 2022 7 8 The International Review of Constitutional Reform | 2022 2022 Table of Contents CO N T R I B U TO R S 4 INTRODUCTION A New Fixture in Constitutional Studies 10 CO N ST I T U T I O N A L R E F O R M S I N 2 02 2 : What Trends to Expect in the Global Constitutional Dynamics? 13 JURISDICTION REPORTS Afghanistan Albania Angola Argentina Australia Austria Bangladesh Barbados Belgium Bosnia and Herzegovina Botswana Brazil Burundi Canada Cape Verde Chile China Colombia Croatia Cuba Cyprus Czech Republic Democratic Republic of the Congo Dominican Republic Ecuador Egypt Eswatini Finland France Gambia Georgia Germany Greece Guatemala Honduras Hong Kong The International Review of Constitutional Reform | 2022 15 20 25 29 32 36 41 45 48 53 57 62 68 72 77 83 88 93 96 100 105 107 109 113 117 122 124 127 132 135 139 143 147 152 155 160 Hungary India–1 India–2 Indonesia Ireland Israel Italy Jamaica Japan Jordan Kenya Lesotho Lithuania Luxembourg Malawi Malta Mexico Mozambique Myanmar Namibia Netherlands New Zealand Nigeria Pakistan Palestine Portugal Republic of the Congo Romania San Marino Sierra Leone Slovak Republic Slovenia South Africa Sri Lanka Sweden Switzerland Taiwan Thailand Tunisia Turkey Uganda Ukraine United Kingdom United States of America Uruguay Vietnam SUMMARIES 164 168 172 1 74 178 184 187 192 197 202 205 208 210 214 217 221 226 230 233 237 242 247 251 256 260 262 266 270 2 74 276 280 284 288 290 294 296 301 30 4 307 311 315 317 320 325 329 331 335 9 ITALY Italy YLENIA MARIA CITINO Postdoctoral Researcher of Public Law Luiss Guido Carli University, Rome GIACOMO DELLEDONNE Assistant Professor of Constitutional Law Scuola Superiore Sant’Anna, Pisa I. INTRODUCTION both Houses with a two-thirds majority and then promulgated by the President of the Republic on February 11th. Constitutional Law No. 1 The 1948 Italian Constitution (ItC) is a comprehensive, written doc- amends Article 9 by adding a new principle of protection for the envi- ument characterized by a complex pathway to constitutional change. ronment, biodiversity, and ecosystems for the sake of future genera- The Constitution consists of 139 articles, some of which have been ab- tions. It also grants the state the responsibility to regulate the methods rogated, as well as 18 transitional and final provisions. The first twelve and forms of animal protection. articles represent the fundamental principles of the Constitution. These The second reform (Constitutional Law no. 2) was approved by provisions (and few others, such as Article 32 ItC, which recognizes a qualified majority and promulgated on November 7th. Following health as a “fundamental individual right” and a “collective interest”) the publication in the Official Journal, no referendum was initiated. are considered a part of the ‘supreme principles of the constitutional or- Constitutional Law No. 2 includes a modification in Article 119, para- der’ theorized by judgment no. 1146/1988 of the Italian Constitutional graph 6, which acknowledges the unique characteristics of the islands Court. In this decision, the Court argued that such principles cannot and the need to redress their disadvantaged economic condition. be altered in their essential content, even though this limitation to con- After a quick evaluation of the repercussions of the Parliament’s stitutional amendment is not explicitly stated in a constitutional provi- early dissolution in 2022 and the consequences of the implementa- sion (interpretive unamendability). tion of the 2020 reform aimed at reducing the number of Members of Subsequently, the Constitution is divided into two main sections: Parliament (MPs), this report will assess all the constitutional reform Part I provides for the rights and obligations of citizens by distin- propositions presented in the two legislative terms in 2022. It will offer guishing among civil relations (Articles 13-28), ethical and social a more comprehensive understanding of the two successful reforms in relations (Articles 29-34), economic relations (Articles 35-47), and connection to the role played by the Constitutional Court. Ultimately, political relations (Articles 48-54). Part II (Articles 55-139) is devoted a concluding remark will highlight the primary avenues for future con- to the “Organization of the Republic” and shapes the political regime stitutional amendments in Italy. of the country. The only explicit limit to amendment concerns the republican principle under Article 139. The mentioned theory of interpretive un- II. PROPOSED, FAILED, AND SUCCESSFUL CONSTITUTIONAL REFORMS amendability of fundamental principles enhances the rigidity of the Constitution. Despite its rigidity, the Constitution has been altered over The defining feature of 2022 is the shift from the 18th to the 19th par- time. Since its entry into force until now, a total of 47 constitutional liamentary term due to the early dissolution of Parliament. The end laws have been enacted, but only 19 directly affected the Constitution, of the term was proclaimed by the President of the Republic, Sergio resulting in amendments that have impacted 38 different articles. Mattarella, after the crisis of the Draghi Government, eight months Throughout the years, with the exception of the 2001 reform of Italian prior to its natural expiration—which was originally due in March regionalism,1 all attempts to pursue extensive constitutional reforms 2023. Consequently, new elections were called. The 19th Parliament is have failed. Such was the outcome of the so-called Bozzi Bicameral the first to operate under the revised Articles 56, 57, and 59 ItC which Committee in 1983-1985, the De Mita-Jotti Bicameral Committee in have reduced the number of MPs in the Chamber of Deputies from 1992-1994, the D’Alema Bicameral Committee in 1997-1998, the reform 630 to 400. Additionally, the 2020 amendment has also reduced the project launched by the second Berlusconi government in 2005-2006, number of elected members in the Senate from 315 to 200, following and the Renzi-Boschi 2016 reform. the first application of Constitutional Law No. 1 of October 19th, 2020. Regarding the year 2022, two constitutional reforms were success- With the inclusion of six life senators, the Senate currently has a total fully adopted. The first one (Constitutional Law no. 1) was approved by of 206 members. The recent reform has impacted the number of votes required to initiate and pass a constitutional amendment under Article 1 For a review of all constitutional reforms, see Carlo Fusaro, ‘Per una storia delle riforme istituzionali (1948-2015)’ (2015) 2 Rivista Trimestrale di Diritto Pubblico, 431-555. The International Review of Constitutional Reform | 2022 138. Although thresholds are unchanged and remain onerous, it is politically easier to meet them with an inferior number of MPs. 187 To amend the Italian Constitution, a special procedure involving Before 2022, two successful proposals were introduced, but the both Houses of Parliament and a possible referendum is required. The stages for the approval of the constitutional laws were finalized in 2020 reform has reduced the number of votes needed for each type of 2022 and are therefore worth mentioning in this report. Firstly, the majority. While any MP can propose a constitutional amendment, it so-called ‘Environmental Reform’ became Constitutional Law No. 1 on must first be approved by a simple majority of half plus one of all House February 11th, 2022, concerning “Amendments to Articles 9 and 41 of members present for the first reading. The second reading requires an the Constitution on Environmental Protection.”6 Secondly, a bill initi- absolute majority, which now stands at 201—instead of 316—votes in ated by citizens in 2018 sought to amend Article 119 by introducing a the Chamber of Deputies and 104—instead of 161—votes in the Senate. sixth paragraph concerning the recognition of the peculiarities of the The two readings must be spaced at least three months apart. islands. It received the approval of the Senate on April 27th, 2022, and If the proposal gains two-thirds majority support during the second was definitively approved by the Chamber of Deputies on July 28th, reading, no referendum is necessary. This means that at least 267 dep- 2022, despite the early dissolution of Parliament. Unlike the “sports uties and 138 senators must vote in favor instead of the previous num- reform,” which had to undergo a new legislative path, the course of bers of 420 and 214, respectively. the “insularity reform” was not interrupted by the dissolution of the In addition to these changes in the majority numbers, which have Parliament. This has high political significance since it seems to set an impact on parliamentary works and decision-making process- a new precedent in which proposals initiated by popular initiatives es, and imply political readjustments, it shall also be considered that can also be voted on during the temporary prorogatio of a dissolved when a parliamentary term expires, legislative proposals introduced in Parliament.7 Constitutional Law No. 2, enacted on November 7th, Parliament but did not successfully progress into law also expire. These 2022, refers to the “Amendment of Article 119 of the Constitution”. proposals must be reintroduced in the new legislative term if sponsors The purpose of this amendment recognizes the characteristics of the wish to continue pursuing their passage. Alternatively, bills may be Islands and the overcoming of the disadvantages deriving from insu- abandoned or substantially modified before reintroduction. Generally, larity8 entered into force on November 30th, 2022.9 bills do start the legislative process anew due to the principle of sover- In the previous legislative term, multiple proposals were introduced eignty and autonomy of each Parliament. However, some exceptions and are now being sponsored again in the current term. Others have exist based on parliamentary rules of procedure, such as bills initiated been newly presented in the 19th legislative term. Among these bills are by citizens or those reproducing a previously approved text, which can proposals aiming to modify the territorial organization of the State be declared urgent and follow a fast-track procedure. (See Rule 107 of and obtain increased autonomy for regions with special status, namely the Chamber of Deputies, as well as Rules 74.2 and 81 of the Senate of Sardinia and Trentino-Alto Adige/South Tyrol, or the city of Rome as the Republic.) the capital.10 By amending Article 111 ItC, other proposals aim to insert In 2022, during the 18th legislature, 34 constitutional bills were a principle of independence for lawyers11 or to recognize the need to lodged, with 14 filed in the Chamber of Deputies and 20 in the Senate protect crime victims.12 Other bills seek to modify the composition of of the Republic. From the beginning of the 19th legislature in October the Constitutional Court in general,13 allocate a share of members to 2022 until the end of the year, 51 proposals for constitutional revision the category of lawyers14 or to linguistic minorities15 as well as insert- were introduced, of which there were 35 in the Chamber of Deputies ing a specific provision to recognize Italian as the official language of and 16 in the Senate.2 the Republic16. Other proposals are also included which seek to amend One of the promising proposals worth mentioning is the amendment Article 27 ItC concerning criminal liability,17 the establishment of new of Article 33 of the Constitution, which aims to introduce an explicit provisions for protecting human rights,18 and changes to the national reference to the sport as a basic right rather than just as a shared legisla- fiscal regime.19 Additionally, some proposals hope to modify the rules tive power (as per Article 117.3 ItC). The suggested revision was already concerning the decrees-laws, under Articles 74 and 77,20 alter Part II tabled during the 18th legislative term. 3 A unified text was adopted at the first and second readings by the Senate, and only at the first reading by the Chamber, where it did not conclude its proceedings by reason 6 7 of the dissolution of the Parliament. An identical text has been presented at the Senate, following Rule 81 of the Senate’s Procedures, and approved after its first reading on December 13th, 2022.4 Afterwards, this amendment proposal was adopted in first reading by the Chamber 8 9 on April 14th, 2023;5 at the Senate, it was adopted in the second reading on May 17th, 2023. Its examination is currently underway at the 10 Chamber of Deputies. 2 All parliamentary draft bills by legislative term can be found in the Senate’s online database, equipped with an advanced search engine. See: <https://www.senato. it/ric/sddl/nuovaricerca.do?params.legislatura=19>. 3 For the draft bills at the Chamber of Deputies, see C.3531, C.3531-B, C.3536. For the draft bills at the Senate of the Republic, see S.747, S.2262, S.2474, S.2478, S.2480, S.2538, S.2538-B. 4 See S.13, S.135, S.152. 5 See C.212, C.337, C.423, C.715. 188 11 12 13 14 15 16 17 18 19 20 The law is published in the Official Journal no. 44 of 22 February 2022. It should be noted that in the Italian system, the legal concept of prorogatio does not equal that of prorogation. While the latter means the status of a Parliament following the termination of a session of a House, prorogation refers to the status of a Parliament which, despite its dissolution, can be summoned for urgent or temporary issues. The rationale of prorogatio is to avoid discontinuity in the functioning of the assemblies before newly elected Members can be summoned. The law is published in the Official Journal no. 267 of 15 November 2022. See Gianmario Demuro, ‘Le isole ritornano in Costituzione’ (2022) 4 Quaderni costituzionali, 901-904. For the 18th legislative term, limited to 2022, see S.2608, S.2654 and C.3635; for the 19th legislative term, see S.172, S.324, S.304, S.305, S.307, S.308, C.7, C.277, C.278, C.392, C.393, C.350, C.514. 19th legislative term, S.418, C.6694. 19th legislative term, S.427 and C.286. 18th legislative term, C.3497. 19th legislative term, C.227. 19th legislative term, C.6. 19th legislative term, S.337, C.736. 19th legislative term, S.426, C.285. 19th legislative term, C.9, C.580. 19th legislative term, C.91, C.414. For the 18th legislative term, see C.3520. 19th legislative term, C.607. For the 18th legislative term, see S.2523. The International Review of Constitutional Reform | 2022 Parliament, legislative procedures, and the confidential relationship ITALY of the Constitution, and especially change the articles that cover the III. THE SCOPE OF REFORMS AND CONSTITUTIONAL CONTROL with the Government.21 There are also proposals that serve to introduce norms concerning the participation of Italy in the European Union.22 The two amendments adopted in 2022 can be described as amend- Other reforms have been tabled in the 19th term to separate the careers ments rather than dismemberments of the Italian Constitution. of the judiciary,23 amend norms pertaining to the social dimension of Borrowing from Richard Albert’s taxonomy, 38 both amendments do not individuals related to family and school,24 establish a right to access exceed the boundaries of the existing constitutional order. However, the internet,25 change the rules concerning amnesty and pardon,26 al- some questions were raised during the drafting process. ter the distribution of competences between the State and the Regions Specifically, Constitutional Law no. 1/2022 was the first amendment on health matters,27 abolish the National Economic and Labor Council in the history of the Italian Republic to affect the content of a provi- (CNEL),28 and change the procedure for constitutional amendment un- sion located in the initial section of the Constitution, namely Article 9 der Article 138.29 ItC. This sparked debates about whether it is permissible to amend the During the 18th legislative term, more proposals were introduced ‘Fundamental Principles’ (Articles 1 to 12) of the Italian Constitution but have now expired due to the dissolution. They encompassed a va- since it has long been established that such basic principles, having a riety of different amendments, such as creating a dedicated section for ‘super-constitutional value,’ are considered more difficult to change military offences within the regular courts by modifying Article 111 of and may serve as silent limitations regarding constitutional amend- the ItC, 30 defining the prerequisites for announcing a state of national ments. Moreover, in 1988, the Italian Constitutional Court (judgment emergency, 31 altering aspects of the President of the Republic’s elec- no. 1146) identified an unamendable core of the Constitution that ex- tion and powers, 32 and eliminating foreign constituencies for electing tends beyond the guarantee of republicanism entrenched in Article 139 MPs. 33 Other constitutional reforms which never progressed include ItC. Constitutional amendments altering this untouchable core of the those that aimed to convene a constituent assembly to revise the con- constitutional would most likely be deemed unconstitutional by the stitution’s organizational section (Part II), 34 to withdraw the constitu- Constitutional Court, who has the power to scrutinize their constitu- tional recognition of the Treaty regulating the relationship between the tionality and to strike them down (as further stated in judgment no. Catholic Church and the State, 35 to incorporate the principle of human 2/2004). dignity in Article 2 ItC, 36 to establish citizen assemblies for public con- In light of this, critics have argued that amending a provision explic- sultation, 37 and to amend Article 41 ItC to address criminal interfer- itly included among the ‘Fundamental Principles’ of the Constitution ence in the national economy. may significantly alter the spirit and the content of the Constitution. A To gain a comprehensive understanding of the attempts to alter the recurring objection is that the unamendable core of the Constitution is Constitution, it is important to note that during the 18th Parliament, not forcefully limited to the ‘Fundamental Principles’ of Articles 1 to 12 310 constitutional reforms were put forward. Among these reforms, 34 and does not necessarily correspond with them. were awaiting committee assignment, 189 were assigned to commit- Prior to 2022, Article 9 ItC stated that the Republic promotes the de- tees but never debated, 12 were being examined by committees, 4 were velopment of culture and research, and protects the natural landscape, being discussed in the plenary, and 2 were waiting for rapporteurs to as well as the historical and artistic heritage of the Italian nation. As a finalize their opinions. Out of these 310 reforms, only 4 minor modifi- result of the 2022 amendment, the new Article 9 ItC includes an addi- cations were implemented between 2018 and 2022, which confirms the tional task of the Italian Republic: protecting the environment and the level of rigidity of the Italian Constitution. ecosystem for the sake of future generations. 21 19th legislative term, S.149, S.94. It can be included also C.325 aiming at ensuring the functionality of the Parliament in times of emergency. During the 18th legislative term, proposals S.2584 and S.2608 were filed to amend the composition of the Senate to ensure a territorial representativity. 22 19th legislative term, C.221, C.349. 23 19th legislative term, C.434. 24 19th legislative term, C.175, C.253, C.331. For the 18th legislative term, see C.3553 and S.2497. 25 19th legislative term, C.327. 26 19th legislative term, C.156. 27 19th legislative term, S.116. 28 19th legislative term, C.8. 29 19th legislative term, C.391. 30 This proposal was filed during the 18th legislative term, S.2554, but by the time being is not lodged again since its main sponsor is not elected in the new Parliament. 31 18th legislative term, C.3444. 32 18th legislative term: C.3453, C.3456, S.2534 and S.2521 concern the procedure for the election of the Head of State. S.2511 seeks to abolish the power to nominate life senators, while S.2522 aims at modifying the regime of parliamentary dissolution. S.2525 aims at amending Article 92 ItC which provides for the power to design ministers. 33 18th legislative term, S.2524. 34 18th legislative term, S.2581, C.3541. 35 18th legislative term, C.3470. 36 18th legislative term, S.2593. 37 18th legislative term, S.2665. The International Review of Constitutional Reform | 2022 Some critics have argued that explicitly mentioning the environment may ultimately undermine the constitutional protection of Italy’s natural landscape and cultural heritage, which are deeply ingrained in the Constitution and, more broadly, in the Italian model of heritage protection. 39 Therefore, amending Article 9 may induce a dramatic alteration of the meaning and scope of well-established constitutional principles. Nevertheless, the dominant view is vastly different. Since the 1980s, environmental protection has been recognized as a specific “constitutional good” through the case law of the Constitutional Court. In 2001, Constitutional Law no. 3/2001, which set the ground for a significant transformation of the Italian regional model, also made reference to the “protection of the environment, the ecosystem, and the cultural heritage” as a subject matter in which the state holds exclusive legislative competence. Constitutional Law no. 1/2022 has not significantly modified the existing fundamental principles related to the promotion of research 38 See Richard Albert, Constitutional Amendments. Making, Breaking and Changing Constitutions (OUP, 2019). 39 See Tomaso Montanari, ‘Art. 9’ in the series edited by Pietro Costa and Mariuccia Salvati, Costituzione italiana: i Principi fondamentali” (2nd ed., Carocci editore 2002). 189 and the protection of national heritage. Instead, it has contributed to was carved in the 1988 judgment and is supported by dominant con- further highlighting the constitutional relevance of environmental prin- stitutional literature.41 Concerning the 2022 amendments, no referral ciples that had already been established through constitutional case law was made to the Court up to now. In this regard, the constitutional and and constitutional and ordinary legislation. legislative regulation of access to the Court has an obvious impact on In line with the above, Constitutional Law no. 2/2022 is worth men- the possibility that amendments are subject to constitutional review. tioning as its contents may at first glance seem to have limited legal and political impact. However, the heated debate surrounding the imple- IV. LOOKING AHEAD mentation of asymmetric regional autonomy and the internal balance of the Italian model of regional state suggests that this amendment The victory of the right-of-center coalition led by Fratelli d’Italia in may have more profound consequences. the 2022 general election may foreshadow yet another round of con- A procedural point should be noticed. The Chamber of Deputies stitutional reform. The four political parties that make up the right- approved this amendment in the second reading on July 28th, 2022, of-center coalition share a platform that places a significant amount despite President Mattarella’s dissolution of the legislature and calling of emphasis on constitutional reforms. Several ambitious goals are for a snap election on July 21st. For the first time since the Constitution mentioned, such as the direct election of the President of the Republic came into effect, an amendment was passed by a dissolved legislature. and the reform of both the judiciary and the Higher Council for the Some scholars have objected that both the Chamber and the Senate had Judiciary. Other envisaged innovations do not forcedly require consti- already approved this bill in the first reading. Furthermore, the second tutional innovations. reading had been completed in the Senate before the dissolution of the Introducing direct presidential elections was foreseen since the 1980s Parliament. Consequently, it was reasonable to get to the end of the in the agenda of Fratelli d’Italia’s predecessors, Alleanza Nazionale legislative procedure. A further incentive for the legislature to approve (AN) and the Movimento Sociale Italiano (MSI).42 However, declara- the reform was the fact that this amendment was the result of a popu- tions issued by senior representatives of Fratelli d’Italia, including par- lar initiative (see above at II). Considering the public’s support for this ty leader and Prime Minister Giorgia Meloni, suggest that this reform reform, it would have been unwise for elected officials to hinder the leg- project would go beyond modifying the election process for the head islative process. On the other hand, critics pointed to this as setting a of state. Rather, it seeks to change Italy’s parliamentary form of gov- potentially dangerous precedent that an unscrupulous legislature may ernment into a presidential or, more likely, a semi-presidential model. rely upon in the future. The specific way this change may occur is unclear. As mentioned above, Before drawing conclusions, it should be noted that in the Italian during the 18th parliamentary term, Fratelli d’Italia MPs tabled a con- system, there is no ex-ante constitutional control of constitutional re- stitutional bill that can be viewed as a blueprint for their constitutional forms. The only form of scrutiny in the amendment process concerns objectives.43 In its early form, critics noticed that the bill was affected the admissibility of the referendum.40 According to Article 138.2 ItC, by inherent contradictions, as it was based on the difficult coexistence a constitutional referendum can only be initiated if three conditions of a strong President of the Republic entrusted with primary responsi- are met: 1) if the two-thirds threshold for the approval of the reform bility for governmental action and mechanisms seeking to ensure the during the second reading is not met, 2) if a request is made within stability of the cabinet, including the German-inspired constructive three months of the publication of the Law, 3) if such request is filed vote of no confidence. by at least one-fifth of the members of a House, 500,000 voters, or five Even some critics of the current government’s constitutional reform regional councils. With regard to the 2022 reforms, a referendum was agenda acknowledge that changes to improve the institutional struc- technically allowed only for Constitutional Law no. 2. However, no re- ture are desirable. However, they disapprove of the limited flexibility quest was filed. and the internal inconsistency of (semi-)presidential projects. These Concerning the ex-post scrutiny of constitutional laws, it can be as- detractors also suggest that well-targeted adjustments to the existing serted that the Italian Constitutional Court plays a counter-majoritar- parliamentary form of government should be favored. In this aspect, ian role since the established case law has acknowledged the power to an element that should be considered with the greatest attention in the invalidate constitutional norms approved by the Parliament for defects discussion about reform is the increasing and unprecedented deinsti- or errors in the substance or content of the law (vizi sostanziali). At the tutionalization of the party system since 2013, which has impacted ex- same time, defects in the form of the law and parliamentary procedural isting institutions.44 irregularities (vizi formali) cannot render a law invalid or unconsti- A distinct question is how these reforms should be adopted. tutional since the final parliamentary approval is assumed to correct Evidence from the past, most notably the two constitutional referen- every fault unless this results in a violation of the Constitution itself. dums in 2006 and 2016, suggests that a unilateral, confrontational The Court’s control for substantial defects in constitutional laws is premised on the idea of the hierarchical superiority of specific principles or norms that subsequent constitutional reform could never override, mostly including Articles 1-12 fundamental principles. This line of reasoning formed the basis of the theory of silent (or ‘natural’) limitations to constitutional revision, which, as previously mentioned, 40 Whether or not the President of the Republic may abstain from promulgating a constitutional law and ask for yet another parliamentary deliberation is disputed. 190 41 See, for instance, Stefano M. Cicconetti, Le fonti del diritto italiano (3rd ed., Giappichelli, 2017), 108 ff. 42 More generally, the French semi-presidential model has been quite popular in conservative and moderate circles since the 1960s: see Raffaele Romanelli, L’Italia e la sua Costituzione. Una storia (Laterza, 2023), 210 ff. 43 18th legislative term, C.716. The bill was rejected by the Chamber of Deputies in the final weeks of the term, on 10 May 2022. 44 A trend that has its root causes in the peculiarity of the history of Italian political parties, well described by Pietro Scoppola, La repubblica dei partiti (Il Mulino, 1991), passim and Giuseppe Maranini, Storia del potere in Italia. 1848-1967 (Corbaccio, 1995), passim. The International Review of Constitutional Reform | 2022 ITALY approach may ultimately backfire against the very proponents of a V. FURTHER READING given reform project. To date, Prime Minister Meloni has generally acknowledged the need for cross-partisan consensus; meanwhile, she Giuliana Giuseppina Carboni, ‘La stagione dell’insularità’ (2022) 22 has also suggested that the right-of-center majority has the ability Federalismi.it, 20-30. and duty to pursue its agenda also in this field. Uncertainty about the contents of this reform has not waned. In a hearing before the Marta Cartabia and Nicola Lupo, The Constitution of Italy. A Senate Committee for Constitutional Affairs on April 5th, 2023, the Contextual Analysis (Hart, 2022). Minister of Constitutional and Law Reform, Maria Elisabetta Alberti Casellati, confirmed that the constitutional bill will be tabled in the Marcello Cecchetti, ‘La revisione degli articoli 9 e 41 della Costituzione next few months. The bill will address two main topics: governmental e il valore costituzionale dell’ambiente: tra rischi scongiurati, qual- stability and the direct election of the President of the Republic or the che virtuosità (anche) innovativa e molte lacune’ (2022) 3 Forum di Prime Minister. Quaderni Costituzionali Rassegna 286-314. Finally, other reform projects should be mentioned because, although they do not impact the text of the Constitution, they have very clear Enzo Cheli, ‘Perché dico no al presidenzialismo’ (2022) 3 Forum di constitutional implications. As amended in 2001, Article 116(3) ItC Quaderni costituzionali Rassegna 54-62. empowers ordinary regions to achieve ‘additional forms and particular conditions of autonomy,’ thereby paving the way for greater asymmetry Marilisa D’Amico, ‘Lo sport come diritto della persona: analisi dei pro- in the Italian regional model. Back in 2017, the regional governments getti di revisione costituzionale’ (2022) 1 Rivista del Gruppo di Pisa, of Lombardy, Veneto, and Emilia-Romagna initiated this procedure. 152-167. Towards the end of the 17th parliamentary term, the Gentiloni government concluded three preliminary agreements with Lombardy, Veneto, and Emilia-Romagna. During the 2018-2022 term, the implementation of these preliminary agreements was severely affected by political instability in the center, with three governments supported by three very different coalitions. Meanwhile, the COVID-19 crisis cast a shadow over the Italian regional model. Supporters of the Italian model highlight the virtues of territorial pluralism, while critics make the case for some kind of recentralization of powers and competencies. These skeptics also argued that granting greater autonomy to some of the regions—mostly those in the North of the country—would be tantamount to authorizing a ‘secession of the rich.’ 45 The ambiguous wording of Article 116(3) ItC and the lack of a general implementing law fostered a wide array of conflicting opinions in scholarship comments. In the current parliamentary term, asymmetric regionalism is a priority in the agenda of the Meloni government and, above all, of the Lega Salvini Premier, one of the political parties of the right-of-center coalition. However, to grant greater autonomy to some regions, several preliminary issues should be resolved, mostly related to the largely unimplemented constitutional reform of 2001 (see above at III). On March 23rd, 2023, the Meloni government established a nonpartisan committee in charge of setting the basic standards for civil and social rights throughout the national territory. On the same day, the Minister for Regional Affairs and Autonomy, Roberto Calderoli, tabled a general bill on asymmetric regionalism.46 Amid growing partisan polarization, the presidential reform and asymmetric regionalism will most likely dominate the agenda of constitutional reform in a broader sense. The success of these reform efforts will ultimately depend on the clarification of several substantive and procedural issues. 45 See Gianfranco Viesti, Verso la secessione dei ricchi? Autonomie regionali e unità nazionale (Laterza, 2019). 46 19th legislative term, S.615. The International Review of Constitutional Reform | 2022 191