Dialogue IV: Access to Constitutional Adjudication

Chapter VIII



Direct Constitutional Complaint and Italian Style do not Match. Why Is That?

Elisabetta Lamarque

SUMMARY: 8.1. The fairy tale of the Constitutional Court in the Italian Constituent Assembly: Aesop’s sheep or Cinderella? - 8.2. Constitutional Court and the judiciary: it takes two to tango. — 8.3. The direct complaint according to the Constitutional Court: a superfluous instrument? - 8.4. The direct complaint within constitutional literature. A rarefied yet not a sterile debate.

The fairy tale of the Constitutional Court in the Italian Constituent Assembly: Aesop’s sheep or Cinderella?

Comparative law scholars have developed a large number of criteria in order to classify and study the various systems of constitutional adjudication, and this is certainly not the appropriate place to examine them.

Nevertheless, all scholars acknowledge that the performance of a centralised system of constitutional review, which is characterised by the existence of a dedicated court capable of ruling laws unconstitutional, is linked to the features and nature of the bodies that have the power within that legal system to involve the constitutional court. Kelsen himself warned that “the question concerning the manner in which proceedings may be launched before the constitutional court is of fundamental importance: the extent to which the court may comply with its task of upholding the constitution is principally dependent upon the solution to this question”.1

In fact, according to some authors, the mechanism of referral is the essential variable which must be considered when classifying systems of constitutional justice featuring a ‘Kelsenian’ court. For example, John Ferejohn and Pasquale Pasquino consider three different actors - namely, a parliamentary minority, individual citizens, and the ordinary courts - in order to describe three different “ideal types” of European constitutional tribunals. These three types are, respectively, the French one (which operates - or, [1]

better, operated - as “the judge of government”), the German one (which acts as “the judge of the judges”) and the Italian one, which functions as “the judge of the law”.[2]

Indeed, it is crucial to establish the type of access to centralised constitutional tribunals, especially when one starts from the idea that every court, including the constitutional one, is a “passive” body. A court is “passive” in the sense that its activity is entirely dependent upon the subjects who are able to launch proceedings before it. The great Italian scholar, Mauro Cappelletti, taught that “procedural passivity” is the principal characteristic that sets apart courts from the legislature and political bodies. According to Cappelletti, the judiciary (unlike political bodies) is by definition “a power on demand”. It is a power that is only activated when requested and, above all, which only operates within the bounds of that request. So, the answers provided by a constitutional court - and thus its role within the system -ultimately depend on the identity and characteristics of the persons or bodies entitled to put questions before it.

Whereas these claims may be true, it is important to acknowledge that, while providing for the establishment of a dedicated Constitutional Court (Title VI, Constitutional Guarantees, Articles 134-137 It. Const.), hereafter ItCC, the text of the Italian Constitution of 1948 is almost entirely quiet about that fundamental issue. For this reason, the situation of Italy is unique within the European panorama.

In fact, the issue of access to the ItCC is only considered in Article 127 It. Const., which is dedicated to the regional form of the State (Title V, Regions, Provinces, Municipalities'}. The Constitution asserts that the Government may challenge regional laws, while regions may challenge any state law, any other act with the force of a state law, or any law of another region. This involves a form of direct access to constitutional justice typical within federal and regional systems,[3] usually referred to as giudizio di legit-timità costituzionale in via principale or di azione. The Founding Fathers introduced this mechanism into the Constitution without any discussion, as a logical consequence of the choice to structure the Italian Republic into multiple regional political entities and to vest each of them with the power to enact laws applicable within their own territories. This was in accordance with criteria governing the allocation of legislative powers between the State and the regions set out in the Constitution itself (Article 117 It. Const.). For many years after the ItCC started to operate (1956), the mechanism was used in a relatively limited capacity. It only served three out of the four, and later (from 1963) four out of the five, regions governed by special statute (because Sicilian statutes were subject to a different form of governmental control) and became fully operational only when the fifteen ordinary regions were finally created in the 1970s. The institution has enjoyed considerable - and for some commentators, excessive - success in recent years, as a consequence of the constitutional reform of the powers of the regions introduced in 2001.

Leaving aside this aspect, the Constituent Assembly which drafted the Italian Constitution did not formalize a certain method of access to constitutional justice because the access to the ItCC was considered a marginal issue at that time. The Founders, indeed, did not even seriously reflect on this issue, but rather they stopped much earlier than this stage. This occurred both due to time constraints and a lack of vision. When the Assembly ended up discussing what would subsequently become the articles dedicated to the ItCC, only a few days were left in order to approve the entire Constitution in view of its planned entry into force on 1 January 1948. More importantly, though, none of the delegates had a particularly clear idea of how the new body would work and what role it would perform.

Throughout the drafting process, the delegates clearly regarded few certainties. The delegates wanted the new Italian Constitution to be hierarchically superior to the law (unlike the previous document, the Albertine Statute, which was in force from 1848 until 1947). For this reason, it was considered necessary to introduce a form of judicial review of legislation. The delegates wanted this review to consider the contents of the law and not only the procedure adopted for its enactment. They also wanted some form of legal review on a technical level, rather than a political review or a consideration of the suitability of the choices made by the legislature. Above all, almost all delegates did not want this review power to fall into the hands of the (already existing) ordinary courts, because they believed the ordinary courts would end up abusing such a power. The delegate thought that ordinary courts would draw on constitutional rules in order to apply the law in an excessively creative manner, resulting in an unconstrained judiciary with the ability to cripple the representative bodies.

In other words, a body named the ‘Constitutional Court’ was incorporated into the Constitution according to a process of elimination. The Founding Fathers deemed it necessary to charge ‘somebody’ with the task of reviewing the constitutionality of laws, and they did not want this entity to be the existing judiciary. Accordingly, the delegates who called for the introduction of this new organ of constitutional justice could assert with certainty only what it was not, or rather what they did not want it to be: one of the existing ordinary courts.[4] Therefore, they were at most able to make provisions concerning the composition of the body and to list its powers (which they did in Articles 134-136 It. Const.).

Everything else - including the particular manner in which the ItCC would be engaged, its operation, and the relations between the ItCC and the other branches of state - fell far beyond the vision of the vast majority of delegates and, consequently, at that time, in 1947, still needed to be conceived.

The fact that a considered reflection concerning the question of access was not possible became apparent in the first instance from the wide variety of proposals. None of these were ever discussed in substantive terms. Finally, on 2 December 1947 (only twenty days before the final vote on the entire Constitution), the delegates decided to put off all decisions regarding this matter. On the basis of the famous “Arata Amendment”, which takes its name from the delegate who tabled it, Article 137(1) It. Const, still asserts that “a [future] constitutional law shall establish the conditions, forms, terms for proposing judgements on constitutional legitimacy [...]”.

The amendment was approved against a backdrop of widespread disinterest and probably thanks to the absence of the delegates who were most sensitive to the issue. The next day some of the delegates discovered what had happened and expressed great concern. In particular, Piero Calaman-drei, one of the greatest Italian jurists, voiced his concern that this deferral would thwart the very possibility of effective constitutional review in Italy. Drawing a parallel which he himself defined as Aesopian, he argued that to charge the future parliament with the task of choosing the manner of accessto the ItCC was akin to commissioning the wolves (i.e. the majority) with building the fence around the sheep (i.e. putting in place guarantees for minorities against the overwhelming power of the majority).

Hence, there was a tangible danger that the ItCC might never become fully operational or that it might be designed by the republican legislature in such a manner as to render it essentially ineffective.

Another great jurist within the Constituent Assembly, the constitutional scholar Costantino Mortati, also acknowledged this danger and did his best to avoid it. He sought a hurried compromise concerning the manner of access to the ItCC with the Provisional Government (which was led by Alcide De Gasperi, a Christian Democrat like Mortati), forced the hand of the Constituent Assembly, and took advantage of his tired colleagues in order to secure its approval by the Assembly shortly before it was dissolved. It is important to note that the Constituent Assembly continued to work throughout January 1948 - after the Constitution had already entered into force - because, as the only democratically representative body operating at that time, it was still necessary to attend to several fundamental tasks before the election of the first republican parliament after more than twenty years of fascist dictatorship. Naturally, these tasks included the approval of electoral laws for the Chamber of Deputies and the Senate along with a law on the press, which would be fundamental in order to ensure a free electoral campaign, and the ItCC was not mentioned within these tasks.

Nevertheless, on 31 January 1948 Mortati went for the last time from the Palazzo Montecitorio, where the Assembly was in session, to the Palazzo Chi-gi. (apparently using an underground tunnel between the two buildings). He presented a single sheet of paper to De Gasperi on which he had noted the bodies which he proposed should be entitled to bring future proceedings before the ItCC: the ordinary courts, the government, and a parliamentary minority. De Gasperi stated his desire that the political actors be removed and that only the ordinary courts be left.[5] Upon his return to Montecitorio, Mortati did not even have time to illustrate his proposal. He only stated that De Gasperi agreed with the text, and it was approved by the Assembly.

Thus, at 8:05PM, on the very last day of the Constituent Assembly, the Italian system of constitutional review was born. Constitutional Law 1/1948 was approved at the time and has not been amended since. It provides that any judicial authority that must resolve a dispute that requires the application of a legal provision, where there is a doubt as to that provision’s constitutionality, has both the power and the duty to refer that question to the ItCC.

What happened at the end of the mandate of the Constituent Assembly is akin to a magician pulling a rabbit out of a hat. The ItCC and the judiciary suddenly and unexpectedly became undisputed co-protagonists within the Italian system of constitutional review. Each would play its own unique role in operating the justice system.

In an article written the following year, Mortati himself referred to the ItCC as the Cinderella of the Constitution. The ItCC came onto the scene right at the end, as discussions were winding down. It was subject to a hasty and superficial examination due to pressure from the impending deadline, and in the end, it was uncertain how and when the ItCC could start operating.[6] So, now we can say that the ordinary courts performed the role of the inevitable knight in shining armour. They ‘rode in’ to save it before it was too late, and thus before its destiny could be left in the hands of the body - i.e. the Parliament - that had every interest in preventing its birth.

  • [1] H. KELSEN, La garantie jurisdictionelle de la Constitution (La justice constitutio-nelle), in XXXV Rev. dir. publ. et sc. pol. (1928), para. 5.
  • [2] J. FEREJOHN, P. PASQUINO, Constitutional Adjudication: Lessons from Europe, in 82 Tex. L. Rw. 1671 (2004), 1682-1683. 2 ’ M. CAPPELLETTI, Giudici legislator?, Milan, Giuffre Editore, 1984, 63 if.; this aspect has been stressed by M. CARTABIA, Mauro Cappelletti: one of the “precious few” of our generation, in 14 ICON, No. 2, 464 (2016), 471. 3 un anno dalla sua scomparsa, in Rivista Aic, No. З, 1 (2017), 27. Another distinguishing feature of the Italian system of constitutional review is that there are only two ways to challenge a law before the ItCC. In this respect recently T. GROPPI, La Corte e ‘la gente’: uno sguardo ‘dal basso’ all’accesso incidentale alia giustizia costituzionale, in Rivista Aic, No. 2, 408 (2019), 409, made-up the word “parchitudine” (we can translate it into “soberness”, “frugality”, or something like that). 4 P. CARROZZA, R. ROMBOLI, E. ROSSI, I limiti all’accesso al giudizio sulle leggi e le prospettive per il loro superamento, in R. Romboli, (eds.), L’accesso alia giustizia costi-tuzionale. Caratteri, limiti, prospettive di un modello, Naples, Edizioni Scientifiche Ital-iane, 2006, 685; R. ROMBOLI, Le oscillazioni della Corte costituzionale tra I’anima “politi-ca” e quella “giurisdizionale”. Una tavola rotonda per ricordare Alessandro Pizzorusso ad
  • [3] G. VOLPE, L’accesso alia giustizia costituzionale: le origini di un modello, in R. Romboli, (eds.), L’accesso alia giustizia costituzionale. Caratteri, limiti, prospettive di un modello, Naples, Edizioni Scientifiche Italiane, 2006, 9. 2 V. BARSOTTI, P.G. CAROZZA, M. CARTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, Oxford, Oxford University Press, 2016, 17-18.
  • [4] ’E. LAMARQUE, Corte costituzionale e giudici nell’Italia repubblicana, Rome-Bari, Editori Laterza, 2012, 5-20.
  • [5] SP. PASQUINO, Contrallo di costituzionalita e forma di governo in Italia, in Giornale di storia costituzionale, No. 11, 309 (2006), 312 ff.
  • [6] C. MORTATI, La Corte costituzionale e i presupposti per la sua vitalita, in lustitia (1949), 69. 2 P. CALAMANDREI, Corte costituzionale e autorita giudiziaria, in Rivista di diritto processuale 1 (1956), 8-9; E. LAMARQUE, Corte costituzionale e giudici nell’Italia repub-blicana, op. cit., 5 and passim', P. PASSAGLIA, Making a Centralized System of judicial Review Coexist with Decentralized Guardians of the Constitution: The Italian Way, in 2 The Italian L.J., No. 2, 405 (2016), 417.
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