Today in Italy, the nation’s constitutional court declared Italy’s so-called pigsty electoral law passed in December 2005 unconstitutional and therefore invalid.
When La Consulta – Italy’s constitutional court – declares laws invalid, they cease to exist. In this case, however, the court appears to have cut the unconstitutional sections relating to the majority premium in Italy’s lower house and the validity of electoral lists out of the electoral law out and left the rest still, barely, standing. Does this mean that all elections held in Italy since 2005 are technically invalid?
Of course, if elections are invalid, then the governments which came into being as a result are also invalid, as is the whole parliament. Can an invalid parliament pass valid laws? Can a parliament which should never have existed pass any laws at all?
The answers are that there are no real answers yet. In other words, Italy is in one enormous mess.
The President’s Opinion
When interviewed today, December 5th, by Italy’s press, Italy’s President Napolitano (who should not really be president – more on this later) expressed the opinion that Italy’s government is legitimate, though he was not too convincing. The justification for his belief is that Italy’s constitutional court stated that Italy’s parliament should work to reform the nation’s electoral law. Seeing as the court did not express an opinion as to the legitimacy or not of Italy’s parliament, this means it can continue to exist – or that’s what Italy’s President thinks, anyway. Well, he’s hardly likely to say anything else, now is he? Just imagine the chaos which would ensue if he admitted that Italy has not had a valid parliament since 2006.
Not everyone agrees with Napolitano’s assessment though. Members of the 5 Star Movement walked out of parliament today after trying to bring forward debate on a new electoral law and failing. The 5 Star Movement MPs think, on the basis of the decision of the constitutional court, that Italy’s present parliament and government no longer exist. In theory, they may well be right. In practice though, Italy simply cannot and will not admit this.
While it is impossible to know, it is probable that Italy’s constitutional court has been warned not to state explicitly that elections based on a law now deemed unconstitutional have effectively erased all of Italy’s governments since 2006 – plus all the legislation they passed.
Now read the opinion of a political scientist on the messy situation Italy has landed itself in.
The Expert Opinion – added 5 December
In view of the complexity of the situation after the decision of the constitutional court, I rang Rome based professor of political science James Walston to ask him whether or not Italy has an invalid parliament or government. What follows is based on my chat with him.
In Walston’s opinion, Italy’s government, parliament and president are valid in that they were created by a electoral law considered to be constitutional at the time. Therefore, the decision of Italy’s constitutional court yesterday does not extinguish Italy’s parliament since 2006. The full grounds of the decision of the constitutional court are not yet known, but, as Walston pointed out, if the court did declare Italy’s parliaments invalid since 2006, by doing so, it would declare itself illegitimate too seeing as a number of the judges in the court were nominated post-2006.
What could cause major complications would be if all the members of a party were to resign – this is something the members of the 5 Star Movement may be considering. As things stand now, if, for example, the 5 Star Movement were to resign, replacing them would be nigh on impossible because of the constitutional court’s finding that the list system Italy is using is unconstitutional. If these MPs did resign, Italy’s parliament could no longer function.
As for laws passed by a government which was in theory unlawful, they probably still stand on the basis that at the time the laws were created, the government was considered lawful. The decision of the constitutional court is likely to be effective from now onwards and will not, in theory, be applied retrospectively.
Unless otherwise mentioned, the rest of this post does not reflect the opinions of James Walston, just in case you wondered.
Other Potential Complications
Also worthy of note is that Italy’s current president Napolitiano was elected into power, first in May 2006, and then in April 2013, by parliaments which weren’t legitimate. Not only does Italy have no valid parliament and thus no government, it may not have a valid president either – but do bear in mind James Walston’s views. Making the situation even worse, as pointed out by the father of the pigsty law, Roberto Calderoli, is the fact that members of the court which declared Italy’s electoral law invalid were elected by a government created by the very same law. Does this mean the court did not have the power to declare the electoral law illegitimate?!
In theory, lawyers in Italy could now argue that any laws passed after the 2006 elections do not exist seeing as they were created by a parliament which wasn’t legitimate. In practice, Italy’s lawyers, propelled by the Boot’s often litigious citizens most probably will seek to declare laws introduced from 2006 onwards null and void, should such a strategy work in their clients’ favour.
Who Challenged the Electoral Law?
The man who took Italy’s government to task over it’s pigsty electoral law is 79 year old lawyer Aldo Bossi who challenged the constitutionality of the electoral law in 2009. Assisting him in his challenge were two other lawyers: Giuseppe Bozzi and Claudio Tani. They will go down in history!
Does Equitalia Exist?
Do certain government organisations created since 2006 such as the government’s somewhat unpopular tax collection agency, Equitalia, exist? Equitalia was formed in 2007 by a law passed by the technically illegitimate Romano Prodi led government. If Equitalia does not exist, it cannot collect tax debts!
One is certain Italians will waste no time whatsoever fighting off tax debt claims by simply stating that a non-valid body created by a non-valid government has no power to collect money from them.
Amusement aside, what happens now? If to all intents and purposes, Italy’s current parliament does not exist, this could mean that the recent VAT rise is potentially not binding.
How is Italy Going to Extricate Itself from this Unholy Mess?
Who knows, but a new electoral law must be passed and elections must then be held to create a truly legitimate parliament and government.
What may happen is that Italy will be forced to re-adopt the electoral law preceding the one which has just been declared invalid, although this may not be possible and a new electoral law will have to be passed. But can an invalid parliament pass such a law? If, as, James Walston believes, the government is still valid, it can attempt to pass a new electoral law – though it may not be easy to push the bill though Italy’s senate.
As to what Italy will do about all laws created since 2006, everyone will have to wait and see the reasoning behind the decision of Italy’s constitutional court. But it is unlikely laws passed since 2006 will cease to exist.
Other, Valid, Questions
Will Italy’s members of parliament be asked to pay back all their earnings since 2006? In theory, this could be requested.
How about parliamentary immunity? If the parliamentarians are not legitimate, they cannot now enjoy the huge benefit of parliamentary immunity from arrest – something else which is, in the opinion of this Italy watcher, not constitutional.
Curiously, some of Italy’s elected politicians, that is if they are actually politicians, have welcomed the decision of the court even if it questions their very existence. Should one question their sanity?
The decision of Italy’s constitutional court could have enormous consequences on Italy’s stability. Will Italy survive? On that one, the court is still out.
This really is an “only in Italy” moment.