The reason why the reform is not unlawful

  • Italiano

Some influential constitutional experts claim that the constitutional reform would be illegitimate as approved by a parliament elected on the basis of an election law declared unconstitutional following the ruling of the consultation Number 1 of 2014. They further argue that the question of the referendum would not allow citizens to understand the ‘object of the reform. The situation is different.

The sentence involved is not a brake on the powers of other state organs, in particular the President of the Republic (Napolitano accepted his re-election on the assumption that the political forces did the reforms planned for thirty years) and Chambers (whose acts, according to the Court itself, they would retain full legal validity even after the judgment). The declaration of unconstitutionality of an electoral law can not be assimilated at the time of dissolution of Parliament (this is the analogical argument of the Court), which belongs only to the head of state. So much so that in this ruling lacks a final date beyond which no longer consider the ordinary activities of the Parliament: that which can not exist in the case of the dissolution of the same. On this point the ruling did not say much and it is not correct to use it to bring water to the reasons of No. Only sets stakes to the Legislator, as it should be in a collaborative approach between powers of the state. Then there is an argument that we might call “definitive”: the thesis of the “delegitimization” could have some basis if the reform had only been approved by the Chambers by a majority of 2/3. But as you will vote the referendum, it is the people who become “constituent body” and, therefore, able to heal any formal or political defect . And the people remain sovereign.

Nor is it true that the referendum question is obscure and therefore illegitimate (point also raised before the administrative court and already rejected). The law stipulates that it must be the Supreme Court – in particular Central Office for the referendum – to “declare the legitimacy” of the referendum question: event that occurred in this case. In turn, the regularity of the question stems from that (same) of the request for a referendum, on which the Central Office is to ensure “compliance” with the rules of Article 138 of the Constitution. Article. 16 of Law no. 352 of 1970 predetermines the formula to be submitted for consultation and that unlike the referendum allowing some “name” by which make shine the intentions of the proponents.

In summary, following the decision of the Supreme Court, the President of the Republic could do no more than call a referendum with the current wording of the question.
Who speaks of illegality does not want to help the voters: so much so that the acceptance of this theory would ultimately generate a paradoxical situation, as the reproduction of the 47 articles of the constitutional reform on the ballot. Where is the simplification for citizens then? It seems to me that someone intended only to cancel the referendum.

The truth appears different. The basic thesis of these authoritative jurists (not expressed but understandable to those who want to read “between the lines”) is the following: it is useless to change the Constitution because the entire political class is quarrelsome, ineffectual and even incompetent (unless where a small circle of experts is heard). According to this view the same path to art. 138( absolute majority plus the referendum) would be bad because the material Constitution would suggest that it would be better to avoid it. I think It is an elitist conception of democracy and politics because it considers immature any ruling class and tends to concentrate the real power in a few hands.

Until vote of 4 December, without taking a position, it will host the supporters of the “Yes” and “No” in the referendum, to allow readers to freely make their own opinion about it.

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