21 April 2015

“Italian-style” secession and the semi-indifference of national politics

While elsewhere in Europe independence through secession from a sovereign state is deemed to be an issue that touches upon the very foundation of the constitutional pact, of living together,[i] in Italy it does not raise any public discussion beyond academic and judicial circles.[ii] As if, by downgrading the constitutional essence of the question to an element of regional folklore or, even worse, ignoring it, the risks at stake in terms of loyalty to the Constitution and endurance of the Republic would magically disappear.

In the UK a careful reflection is currently underway, at Westminster as well, on the negative outcome of the Scottish referendum for independence of 18 September 2014 and on the pros and cons of a more “advanced” devolution of powers to Holyrood. In Catalonia the President and two other Ministers of this Comunidad autónoma are subject to an investigation by the High Court of Justice of Catalonia for their role in holding a consultation, which resulted in favour of secession, on 9 November 2014, although the Spanish Tribunal Constitucional had ordered the suspension of such a consultation and, more recently, on 25 February 2015, declared some provisions of the new “Law of popular consultations without referendum nature” and the “Decree of Call” unconstitutional. By contrast, in Italy the attempt of the Veneto to secede from the Republic has remained completely out of the national political debate and, more worryingly, has been absent from parliamentary debate.

This is astonishing if we consider that, while the regional Council of the Veneto was passing Law no 15/2014, on the consultative referendum for the Veneto’s autonomy, and Law no. 16/2014, calling for a consultative referendum on the independence of the Veneto, both of June 2014, the Senate of the Italian Republic was debating the Constitutional Bill amending Part II of the Constitution and especially its Title V and the future of the Senate as the institution that will provide the link between the centre and the regional and local authorities in the new constitutional landscape.[iii]

After all, the Veneto is not new in taking this kind of initiative, which had been already declared unconstitutional by the Constitutional Court (sentenze no. 470/1992 and 496/2000), although in the past they were not as subversive of the constitutional order as Laws no. 15 and 16/2014. By the same token, also in the present circumstances the – largely expected – institutional reaction was the appeal against the new regional legislation by the national executive before the Constitutional Court on 8 August 2014 (pending cases no 67 e 68/14), precisely when the Senate approved the text of the constitutional reform at first reading.[iv]

There were, and still are, several controversial issues tackled by the two regional Laws that would have been worthy of discussion by parliament and public opinion, in spite of what happened in practice. First of all, the adoption of the regional laws can be framed within a succession of convulsive events, like the “online plebiscite” on the right to self-determination of the Veneto held on 16-21 March 2014, the following “Declaration of Independence of the Republic of the Veneto” (Dichiarazione di Indipendenza della Repubblica Veneta) of 21 March 2014, and the arrest of the so-called “Serenissimi” in April 2014, a paramilitary group that pursued the fulfillment of regional independence from the Italian Republic through violence. Furthermore, on 2 January 2015 the “Delegation of the Ten” (la Delegazione dei Dieci), the self-proclaimed “first institutional body of the Republic of the Veneto”, approved the founding principles of the new “Republic” and called for the first online election of its provisional parliament on 15-20 March 2015.[v] Thus the activities aiming to overthrow the unity and indivisibility of the Italian Republic (art. 5 Const.) are still being carried on, as if nothing had happened, despite the constitutional challenges pending against the two regional laws.

Law no 15/2014, which is more moderate in its claims than the second law, confers upon the President of the Region (who is directly elected by the people) a mandate to negotiate with the national Executive the question/s to submit to a regional consultative referendum on “the achievement of further forms of autonomy to the Veneto” (Art. 1, “conseguimento di ulteriori forme di autonomia della Regione del Veneto”). Should the negotiations fail, or should the agreement not be reached after 120 days from the approval of Law no 15/2014, the president of the region is authorized to call the referendum anyway (Art. 2). The regional legislator has inserted into the law a financial clause to cover the expenditure deriving from the referendum (Art. 4) and has detailed the circumstances under which the referendum can be held, i.e., in agreement with the state authorities (Art. 3), on the occasion of the European Parliament or the national parliament’s elections, or the first regional elections after the entry into force of the law, if appropriate also defining with the national Ministry of Interior how to share common costs.

This notwithstanding, however, it does not appear that the negotiation between the President of the Region and the national executive has even begun, nor did the President of the Veneto call for a referendum, once the deadline of 120 days elapsed. What is more, five referendum questions have already been drafted into law and they deal with the opportunity to:

(Q. 1) provide the Veneto with additional special forms and conditions of autonomy compared to the status quo;

(Q. 2, 3, 4) make it possible for 80% or more of the revenue levied in the Veneto, even where based upon state taxes, is spent within the region, that resources raised regionally be managed by the region and that state transfers are not made conditional by state authorities upon the fulfillment of specific objectives;

(Q. 5) transform the Veneto into a region with a special statute, like Friuli-Venezia Giulia, Sardinia, Sicily, Trentino-Alto Adige/Südtirol and Valle d’Aosta/Vallée d’Aoste, which enjoy a different status to other regions, including in the area of fiscal autonomy.

Without going into the detail of the constitutional challenges brought by the national executive against regional legislation, on which we might easily concur, especially concerning the violation of Articles 116, 117 and 119 Const., it cannot be denied that the proposed referendum questions mirror claims that the Veneto, through its institutions, has been demanding of the central government for years. These claims also reflect, since the constitutional reform of 2001, the difficult implementation of Art. 116, 3rd par., Const., fiscal federalism and the coordination of public finance, and the concerns coming as a result of continuing to keep five regions with special statutes in a privileged – more autonomous – position.

In 2006, the regional Council of the Veneto presented a bill to the national parliament to grant itself additional forms and conditions of autonomy, according to Art. 116 Const., which, however, has been substantially ignored since then. The persistent lack of actual answers on the part of the state to the demands for more regional autonomy can lead to the unexpected and alarming results we are currently witnessing.

Perhaps, besides the constitutional concerns it has created, Law no 15/2014 has triggered at least some positive changes, although no explicit link has been established between certain institutional reactions occurring at national level and the proposed regional consultative referendum on granting more autonomy to the Veneto. For example, while the Constitutional Amendment Bill originally presented by the Executive provided for the repeal of Art. 116, 3rd par. Const., the text approved by the Senate on 8 August 2014, at the first reading, confirmed the opportunity to promote “differentiated regionalism”, i.e. to allow ordinary regions, with the consent of the national Parliament, to take up as their exclusive legislative competence some selected areas that are in the prospective constitutional catalogue of state competence, in the framework of a new division of competence between state and regions that in general has reduced the space for regional legislation vis-à-vis the present architecture. The amendments passed in the Senate have extended the application of Art. 116 Const. to the area of “land-use planning”, a key-competence for the balance of power between centre and periphery, as did the Chamber of Deputies, following its first voting on the Constitutional Amendment Bill on 10 March 2015, since it has further extended the possibility for “differentiated regionalism” to “labour policies, education and professional training”, which otherwise would fall within the exclusive remit of the state. Moreover, according to the Constitutional Bill, as amended, the law to be adopted by the national Parliament, conferring further forms of autonomy to the region seeking additional competences, is facilitated in that the law can be passed by a simple majority rather than an absolute majority in both Chambers as it is now; the only condition being for an ordinary region to enlarge its pool of competence to comply with the balanced budget requirement established under the constitutional reform of 2012 (new Art. 119 Const.).

The legitimate – though unheard – claims of regions for more autonomy within the existing constitutional framework, in light of the persistent inaction of the state in the implementation art. 116, 3rd par. Const. after the reform of 2001, represent a serious threat for the unity of the Republic. This is also confirmed by the recent approval, on 17 February 2015, by the regional Council of the Lombardia of a “Proposal to hold a consultative referendum aiming to provide the Lombardia with additional special forms and conditions of autonomy (DCR X/638). Since in the Lombardia decisions on regional consultative referendums have to be agreed by two thirds majority of the Council’s members, the Proposal gained the support of a great majority of regional councilors, including those from the parties that are currently represented in the national coalition Government. It is a sign of the increasing detachment between national and regional politics which cannot be ultimately addressed or stopped by constitutional case law – also this decision of the regional Council of the Lombardia will be likely challenged before the Constitutional Court – but needs a concrete political response from the centre, which might come from the constitutional reform underway.

Even a more direct attack against the unity and indivisibility of the Italian Republic is represented by regional Law no 16/2014 of the Veneto. Not only, according to this law, is the procedure for calling a referendum on the independence of the Veneto purely unilateral, since the President of the Region is deemed to act without consultation or negotiation with the central authority (Art. 1). In addition, the President of the Region and the president of the regional council must “urgently establish institutional relations with the European Union and United Nations’ institutions that guarantee the appropriate execution of the referendum” and both “are bound to protect before any institutional author, national and international, the right to self-determination of the People of the Veneto (Art. 3).”

The question to be submitted to regional voters in the referendum, based on Law no. 16/2014, is: “Do you want the Veneto to become an independent and sovereign Republic? Yes or No?.” A vote in favour of the setting up of the new Republic of the Veneto is attained if the majority of the people entitled to vote, i.e. those having reached the legal age (18) and registered in the electoral lists of the Veneto’s municipalities, participates in the referendum and the majority of the votes validly expressed supports the secession (Art. 1). Hence, the question posed is not limited to reaching a condition of strengthened autonomy, but it aims to secede. Furthermore, in execution of Law no, 16/2014 and in contrast with the slow process of implementation of Law no 15/2014, the regional government of the Veneto promptly adopted a series of provisions dealing with the propaganda, the voting procedures in the referendum and the steps to be taken for the official proclamation of the results (decision no. 1331 of 28 July 2014) and those concerning the economic and financial aspects of the referendum (decision no. 1709 of 23 September 2014).

Compared to the precedents of the Italian Constitutional Courts (sentenze no. 470/1992 and 496/2000), should the outcome of the referendum be in favour of secession, Law no. 16/2014 does not foresee any commitment on the part of regional institutions, and in particular the regional Council of the Veneto, to present a Constitutional Amendment Bill aiming to provide a national (constitutional) legal basis for the declaration of independence. However, even if such a Constitutional Bill had been foreseen, in the light of constitutional case law the regional Law in question nevertheless would have been considered in breach of the Constitution. Indeed, although the constitutional reform of 2001 had certainly expanded regional autonomy, especially from the viewpoint of rule-making and policymaking, that reform did not encroach upon the indivisibility of sovereign powers in the hands of the Italian Republic so as to foreshadow a situation of shared sovereignty between state and regions (sentenza no. 365/2007).

Thus, what the Italian Constitutional Court stated in sentenza no. 496/2000 also applies in the pending case. In 2000 the Court affirmed that

a regional electoral body is prevented from promoting constitutional amendments, since the procedural and organizational rules governing constitutional revisions, which are tied to the concept of unity and indivisibility of the Republic (Art. 5 Const.), do not leave any room for regional popular consultations which pretend to accredit themselves as manifestations of autonomy (§ 5).

Also, as far as regional referendums go, the Constitutional Court clarified the situation more than twenty years ago:

When dealing with great questions of general interest, in the relationships with state institutions, it is the [national] electoral body as a whole that is called to express its will, at the same time. It is not admissible to acknowledge to a regional consultative referendum, given the participation of the only regional population, the same value as a national consultative referendum (sentenza no. 256/1989, § 5).

It follows, for instance, that the formula agreed in the UK for the Scottish case to make the effects of the regional referendum on secession binding for the entire national territory could by no means be accepted under the Italian Constitution.

Nor could the solution given by the Spanish Tribunal Constitucional to the Catalan attempt to secede apply to Italy. Given the interpretation in conformity with the Constitution provided by the Spanish Court to Resolución 5/X of the Catalan Parliament – the “Declaración de soberanía y del derecho a decidir del pueblo de Cataluña” –, not only is this Resolution in compliance with the Constitution, but it also “expresses a political aspiration entitled to be protected in the framework of the Constitution (STC 42/2014, §4, c), my own translation).” Because of this (disputable) interpretation, the Catalan Parliament is allowed to present to the Cortes Generales a Constitutional Amendment Bill which would make it possible to hold, among other things, a referendum on the independence of Catalonia.

Within the Italian constitutional system, instead, a Constitutional Amendment Bill allowing the secession of a region from the rest of the country, even if approved through a constitutional confirmatory referendum, would result in a violation of the supreme principles of the Constitution, among which are the principles of unity and indivisibility of the Republic as implied limits to the change of the Fundamental Law.[vi]

Maybe because of the confidence placed in the “bastion” of the Italian Constitution against the disaggregative trends that currently affect the Republic and on the balanced application of the Fundamental Law by the Constitutional Court, the national parliament and executive have carefully avoided fostering any debate on the ongoing challenges of Italian regionalism and on the deep tensions underlying the approval of Law no 16/2014, which occurred with the support of not just a handful of “Serenissimi” but rather of the regional executive and Council of the Veneto. Even when a parliamentary debate on the topic could have taken place, since the attempt of the Veneto to secede was evoked and supported by some MPs of the Northern League, any discussion on this issue has been disregarded.[vii]

In the UK, where the sovereignty of the national parliament is a cornerstone of its constitutional architecture, it is demonstrated that in a mature democracy political institutions are ready to debate so as to make sense of what a “state” is today, of its boundaries and suitability. The effect is that, by “normalizing” the discourse and the rhetoric on the secession of Scotland, rather than treating it as a taboo, the very essence of a democratic and pluralistic state, as the UK certainly is – in spite of and perhaps precisely because its internal divisions, autonomist and national movements –, has in fact been strengthened.

Well before the Italian Constitutional Court issues its judgment (the public hearing on the joined cases will take place on 28 April 2015) and using the ongoing process of constitutional reform as an opportunity to meditate on what is and what we would like our Republic, “one and indivisible”, to be, the hope for Italy is that national politics will soon take back its ability to drive a constructive debate on the inevitable tensions between the state and the regions. These tensions, which do not arise only in Italy and are typical of many other regional and federal states, can effectively be tackled through new institutional solutions, like a reformed Senate, as was proposed in Italy in 2014.

Although the procedure followed in the UK to deal with the Scottish secession is not constitutionally feasible in Italy, the method adopted beyond the English Channel, based on public debate and political confrontation within the institutions designated for this purpose – the parliament, intergovernmental relationships and bilateral conferences –, if used for the Veneto could prevent a series of troublesome consequences. For example, in the aftermath of the proclamation, on 21 March 2015, of the “electoral results” of the provisional “parliament” of the Republic of the Veneto, and while waiting for the forthcoming elections for the President of the Region and of the Council, to be held on 31 May 2015, a serious and targeted discussion on the sentiments of citizens and politicians in the Veneto and of their claims against the central authorities would have prevented this region from being more and more disconnected from the “heart” of the only Republic recognized by our Constitution, the Italian Republic.

A slightly revised version of this post was originally published in Italian on Diritticomparati.it on 5 March 2015. Except for the text of the Constitution, whose official English translation is used here, the translation of the other documents – mainly legislation and judgments – cited or quoted in this post is provided by the author.

[i] See D. Haljan, Constitutionalising Secession, Oxford and Portland/OR, Hart Publishing, 2014, espec. pp. 50-52 and, in particular on the case of Scotland, S. Scarinci, Scotland’s referendum for independence: a constitutional definition, Diritticomparati.it, 19 September 2014.

[ii] See also the Focus on “Scotland and the EU” appeared on Verfassungsblog in September 2014.

[iii] See C. Pinelli, Riforma del Senato, è tempo di cambiare approccio, Huffington Post, 13 maggio 2014 and G. Serges, Autodeterminazione, diritto a decidere, indipendenza, sovranità (notazioni a margine della Legge regionale del Veneto, n. 16 del 2014), Federalismi.it, 26 January 2015.

[iv] According to Art. 138 Const., in order for a constitutional amendment bill to enter into force, it must be adopted in the same text by the two chambers in two successive votings, at intervals of not less than three months, by a two-thirds majority of the members of each chamber. If such a majority is not reached, provided that at least the absolute majority of each chamber voted in favour on the occasion of the second voting, the bill can be submitted to a constitutional confirmatory referendum upon request of one-fifth of the members of either chamber, 500,000 voters or five regional councils and is finally enacted if approved by a majority of votes validly expressed. In the framework of the ongoing process of constitutional reform, both chambers have completed the first reading, but they have not yet adopted the Bill in the same text, since the Italian Chamber of Deputies amended the text passed by the Senate, where the procedure started. Hence neither of the two successive votings requested by the Constitution has yet taken place.

[v] According to the Italian Constitution and constitutional case law (sentenze no 106 and 306/2002), the name “Parliament” can only be attached to the national bicameral legislature and regional legislative assemblies, the regional Councils, are not entitled to call themselves “Parliaments”.

[vi] The presence of implied limits to the amendment of the Italian Constitution, besides the only explicit limit provided by Art. 139 Const., that is the republican form of state, is generally acknowledged by Italian scholarship as well as by the Constitutional Court, starting from the 1970s (e.g. sentenze no 1146/1988 and 232/1989, the latter following a series of decisions on the relationship between national law and Community law).

[vii] See the verbatim report of the Italian Chamber of Deputies, plenary session, XVIIth parl. term, no 291 of 16 September 2014, pp. 11 and 26 (in Italian).