Fascism And The Italian Constitution
The current Italian constitution came into effect on 1st January 1948 and it was integral to Italy’s progression away from Fascism. After years of totalitarian rule under the dictatorship of Benito Mussolini, the clear aspiration of constitutional change was to create a ‘viable democratic regime that would embrace all citizens’ (Pasquino, 2000: 71). The new constitution, therefore, paid particular attention to democratic practices and put in place necessary checks in order to guarantee them. This essay will consequently analyse the constitutional changes made to the role of Head of State, Parliament and human rights and consider why these changes were necessary. I will also explore the political choices and constitutional checks that prevent
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a return to fascism and challenge whether the Italian constitution is successful in upholding democracy.
Firstly, one of the most significant constitutional changes concerns the role of Head of State. Whereas during Mussolini’s dictatorship, King Vittorio Emanuele III was the Head of State, after a referendum in 1946, a 55 percent majority voted for a Republic and the monarchy was abolished. The Constituent Assembly recognised the importance of a Republic in maintaining democracy, therefore, the constitution prohibits any amendments to this form of state (Italian Constitution, 1948: art. 139). Nowadays, the Head of State is the President of the Italian Republic. Whilst an important role in many other European political systems, the role of the Italian President is essentially formal and representational (Italian Constitution, 1948: art. 87). Despite having some powers, including the ability to dissolve Parliament and ask them to reconsider legislation, the constitution places strict restrictions on Presidential powers to prevent the return to a dictatorship (Italian Constitution, 1948: art. 74, 88). For example, the President may only be entitled to dissolve parliament in consultation with one of its speakers (Italian Constitution, 1948: art. 88). Additionally, articles 83 and 89 prevent the President from claiming a popular mandate or working on his own with any authority (Italian Constitution, 1948: art. 83, 89). These articles exemplify the important checks the Constituent Assembly placed on the President in preventing the concentration of power in the hands of one individual. In evaluating the old regime, it is evident that these checks were necessary in upholding democracy. During Fascist rule, the King, as Head of State, appeared to have considerable political responsibility in exercising executive power with the help of his government as according to Law number 2263 (Law No. 2263, 1925: art. 1). In reality, any responsibilities he was given, such as issuing royal decrees, were all under specific instruction from the government (Law No. 2263, 1925: art. 4). This was due largely to the King’s failure to prevent the Fascist seizure of power in 1922, which both reduced him to a figurehead and aided Mussolini’s progression to the role of ‘Duce’, concentrating a significant amount of power in the dictator’s hands (The Editors of the Encyclopaedia Britannica, 2015). Although, under Fascism it was the Head of Government and not the Head of State who centralised and concentrated power, the Constituent Assembly was keen to ensure democracy. Thus, in subjecting the President to constitutional checks, it ensures that as a member of the executive he cannot act autonomously nor can he centralise power as Mussolini did. However, in recent years, due to the instability of the government, the President has adopted ‘informal’ powers, which enable him to authorise personal statements without previous consultation of the cabinet (Amoretti and Giannone, 2014: 439). Despite their content not contradicting the constitution, the act of adopting ‘informal’ powers could be problematic to democratic practice as there are no checks in the constitution as to what these ‘informal’ Presidential powers can and cannot be. Nevertheless, in general, the constitution has been successful in upholding democracy due largely to the extensive checks in place on the individual power of the President. Not only has the aspiration of constitutional change been achieved, but it makes it less likely that these ‘informal’ powers will have any damaging political consequence.
Additionally, the role of Parliament is important and varied considerably between Mussolini’s dictatorship and the democratic Republic. Currently, Italian parliament is uniquely a system of perfect bicameralism. This means that both chambers; the Chamber of Deputies and the Senate of the Republic have equal powers in parliament and legislative function is exercised collectively between them (Italian Constitution, 1948: art. 70). This system, however, can lead to political stalemate if the two chambers do not agree on legislation and confirms the criticism that Italian politics is ‘notoriously ineffective’ (Jones, 2006). Despite this, perfect bicameralism has ensured democracy by placing checks on the power of each chamber whilst enabling both chambers to hold the government to account. This is necessary because in 1926, under Mussolini, the government was given considerable freedom in making decrees, taking away Parliament’s legislative power. (Law No. 100, 1926). This directed power towards the government and ultimately into Mussolini’s hands, giving him direct control over the State’s affairs. Therefore, in separating legislative responsibility between the two parliamentary chambers equally, the constitution prevents the concentration of power in one place, minimising the possibility of a return to dictatorship and achieving the democratic aspirations of the constitution.
The election of Parliament members was also subject to constitutional change in 1948. Whilst in the current democratic system, both houses are directly elected by the electorate on a regional basis, under Fascism, the Grand Council controlled the electoral system (Foot, 2003: 190). A single party list of Deputies was proposed by this council and put to referendum (Law No. 1019, 1928: art. 5). This electoral system drastically minimised public input into the State’s affairs and consequently strengthened totalitarian rule by concentrating all power in the hands of the executive. Moreover, in 1939 the lower house of parliament was replaced by the Chamber of Fasci and Corporations, whose councillors represented different divisions of trade and industry instead of geographic constituencies (Law No. 129, 1939). In taking away regional influence, power became centralised, increasing Mussolini’s control of Italy. To prevent the return to a dictatorship, the Constituent Assembly created an electoral system that was more representative of the people and ensured regional devolution with 100 constituencies across 20 regions electing between three and nine Deputies depending on their size (Italian Constitution, 1948: art. 56, 57). This distribution of power prevents the possibility of totalitarian rule and thus achieves the democratic aspiration of constitutional change. However, the current electoral system has undergone many changes due to its struggle to produce workable coalitions. In 2013, the Constitutional Court deemed parts of the electoral system used in the last three elections, unconstitutional. This epitomised Italy’s struggle to find an electoral system that adheres to the constitution and guarantees democracy whilst producing workable coalitions. Fortunately, Italy has recognised the importance of modernising its constitution in order to ensure that democracy works in a ‘consistent and satisfactory manor’ (Pasquino, 2000: 93). Consequently, the new ‘Italicum’ electoral system was approved in 2015. Whilst, this system aims to ensure workable coalitions, some critics remain sceptical (Pasquino, 2015).
Another fundamental part of any democratic regime is human and civil rights.
The Italian constitution, therefore, outlines these rights in meticulous detail and highlights their importance (Italian Constitution, 1948: title I, till II). As a response to the injustice and violence that dominated the fascist regime, article two of the constitution both demonstrates that the Republic recognises the value of ‘inviolable rights of the person’ and guarantees them (Italian Constitution, 1948: art. 2). This prevents the violation of human rights in the way that the Fascist regime did. Under Mussolini, for example, the Blackshirts, a ‘fascist squad, armed and in uniform, killed, maimed and destroyed property with very little intervention from the state’, who sometimes even encouraged this violence (Foot, 2003: 56, 82). Therefore, the current constitution further safeguards civilians from this type of violence in protecting the inviolability of the home and personal liberty (Italian Constitution, 1948: art. 13, art. 14). These articles are necessary checks in the constitution which guarantee basic human rights and prevent the return to totalitarianism in prohibiting the use of violence to gain political support as the Blackshirts did. Furthermore, the fascist regime also violated human rights through its treatment of the Jews. Unlike Hitler, Mussolini’s anti-Semitism was never at the core of his belief and he exempt Jewish war veterans from anti-Semitic legislation (Neville, 2004: 117, 118). Nevertheless, in 1938, a law on the provisions for the defence of the Italian race was passed which severely limited Jewish liberties, prevented Jews from having certain jobs and violated their basic rights. (Law No. 1728, 1938). Consequently, in order to prevent racial persecution in the future, the Italian constitution prioritises equality in ensuring the equal social dignity of all citizens without distinctions (Italian Constitution, 1948: art. 3). However, after signing the Treaty of
Rome in 1957, Italian Law had to conform to European Law. Unfortunately, discrepancies between the two systems has lead to Italy being taken before the European Courts (Foot, 2003: 73). In 2009, for example, Italy was condemned by the European Court of Human Rights for failing to carry out a thorough investigation into the death of Carlo Giuliani (Scholl, 2013: 189). Whilst this leads us to question the success of the new constitution in ensuring human rights, in general, Italy prioritises the rights and the equality of all its citizens. The aspiration of constitutional in upholding democracy through equality is consequently achieved.
Finally, the preservation of human rights is inextricably associated with the judiciary of which the Constitutional Court is an important strand. Although primarily its role is to suppress unconstitutional legislation, it can be asked to intervene in conflicts between the regions and the state and is essential in holding ministers to account (Italian Constitution, 1948: article 134). The latter is extremely important given that under Mussolini it was difficult to prosecute Grand Council members without the authorisation of the Grand Council itself (Law No. 2693, 1928: art. 9). Additionally, the Constitutional Court had an integral role in the reform of the penal code which began after pressure from below in 1956 (Foot, 2003: 74). This was necessary because despite constitutional change in 1948, there was no extensive reform of the Rocco Penal Code which was introduced under Fascism (Foot, 2003: 74). This was a lengthy process and until 1981, for example, the Rocco Code allowed atrocities such as ‘honour’ crimes against women, despite the constitution recognising the equality of men and women in marriage (Bettiga-Boukerbout, 2005: 239)(Italian Constitution, 1948: art. 29). The initial lack of reform of the penal code and the time it took to complete these reforms were considerable failures of constitutional change. However, through the Constitutional Court’s response to these failures, in recognising and correcting unconstitutionality, we see its success in ensuring democratic practices and thus it is fundamental in achieving the aspirations of constitutional change in upholding democracy.
In conclusion, it is evident that constitutional change in 1948 was essential in Italy’s evolution from dictatorship to democracy. The changes made to the role of Head of State, Parliament and human rights laws, at this time, proved integral in preventing a return to totalitarian rule in successfully upholding fundamental democratic practices. In my opinion, the checks placed throughout the constitution which ensure democracy, are its most important aspects because they have made the return to a dictatorship almost impossible. Additionally, some constitutional changes since 1948, notably electoral reforms, have questioned Italy’s ability to ensure the simultaneous existence of democratic practice and an efficient political system. Italy’s constitution therefore appears never-ending with many changes still needing to be made (Pasquino, 2000: 93). Fundamentally, however, since 1948, Italy has not returned to a dictatorship and therefore, for the most part, Italian constitutional change has succeeded in achieving its aspirations of safeguarding democracy.
a return to fascism and challenge whether the Italian constitution is successful in upholding democracy.
Firstly, one of the most significant constitutional changes concerns the role of Head of State. Whereas during Mussolini’s dictatorship, King Vittorio Emanuele III was the Head of State, after a referendum in 1946, a 55 percent majority voted for a Republic and the monarchy was abolished. The Constituent Assembly recognised the importance of a Republic in maintaining democracy, therefore, the constitution prohibits any amendments to this form of state (Italian Constitution, 1948: art. 139). Nowadays, the Head of State is the President of the Italian Republic. Whilst an important role in many other European political systems, the role of the Italian President is essentially formal and representational (Italian Constitution, 1948: art. 87). Despite having some powers, including the ability to dissolve Parliament and ask them to reconsider legislation, the constitution places strict restrictions on Presidential powers to prevent the return to a dictatorship (Italian Constitution, 1948: art. 74, 88). For example, the President may only be entitled to dissolve parliament in consultation with one of its speakers (Italian Constitution, 1948: art. 88). Additionally, articles 83 and 89 prevent the President from claiming a popular mandate or working on his own with any authority (Italian Constitution, 1948: art. 83, 89). These articles exemplify the important checks the Constituent Assembly placed on the President in preventing the concentration of power in the hands of one individual. In evaluating the old regime, it is evident that these checks were necessary in upholding democracy. During Fascist rule, the King, as Head of State, appeared to have considerable political responsibility in exercising executive power with the help of his government as according to Law number 2263 (Law No. 2263, 1925: art. 1). In reality, any responsibilities he was given, such as issuing royal decrees, were all under specific instruction from the government (Law No. 2263, 1925: art. 4). This was due largely to the King’s failure to prevent the Fascist seizure of power in 1922, which both reduced him to a figurehead and aided Mussolini’s progression to the role of ‘Duce’, concentrating a significant amount of power in the dictator’s hands (The Editors of the Encyclopaedia Britannica, 2015). Although, under Fascism it was the Head of Government and not the Head of State who centralised and concentrated power, the Constituent Assembly was keen to ensure democracy. Thus, in subjecting the President to constitutional checks, it ensures that as a member of the executive he cannot act autonomously nor can he centralise power as Mussolini did. However, in recent years, due to the instability of the government, the President has adopted ‘informal’ powers, which enable him to authorise personal statements without previous consultation of the cabinet (Amoretti and Giannone, 2014: 439). Despite their content not contradicting the constitution, the act of adopting ‘informal’ powers could be problematic to democratic practice as there are no checks in the constitution as to what these ‘informal’ Presidential powers can and cannot be. Nevertheless, in general, the constitution has been successful in upholding democracy due largely to the extensive checks in place on the individual power of the President. Not only has the aspiration of constitutional change been achieved, but it makes it less likely that these ‘informal’ powers will have any damaging political consequence.
Additionally, the role of Parliament is important and varied considerably between Mussolini’s dictatorship and the democratic Republic. Currently, Italian parliament is uniquely a system of perfect bicameralism. This means that both chambers; the Chamber of Deputies and the Senate of the Republic have equal powers in parliament and legislative function is exercised collectively between them (Italian Constitution, 1948: art. 70). This system, however, can lead to political stalemate if the two chambers do not agree on legislation and confirms the criticism that Italian politics is ‘notoriously ineffective’ (Jones, 2006). Despite this, perfect bicameralism has ensured democracy by placing checks on the power of each chamber whilst enabling both chambers to hold the government to account. This is necessary because in 1926, under Mussolini, the government was given considerable freedom in making decrees, taking away Parliament’s legislative power. (Law No. 100, 1926). This directed power towards the government and ultimately into Mussolini’s hands, giving him direct control over the State’s affairs. Therefore, in separating legislative responsibility between the two parliamentary chambers equally, the constitution prevents the concentration of power in one place, minimising the possibility of a return to dictatorship and achieving the democratic aspirations of the constitution.
The election of Parliament members was also subject to constitutional change in 1948. Whilst in the current democratic system, both houses are directly elected by the electorate on a regional basis, under Fascism, the Grand Council controlled the electoral system (Foot, 2003: 190). A single party list of Deputies was proposed by this council and put to referendum (Law No. 1019, 1928: art. 5). This electoral system drastically minimised public input into the State’s affairs and consequently strengthened totalitarian rule by concentrating all power in the hands of the executive. Moreover, in 1939 the lower house of parliament was replaced by the Chamber of Fasci and Corporations, whose councillors represented different divisions of trade and industry instead of geographic constituencies (Law No. 129, 1939). In taking away regional influence, power became centralised, increasing Mussolini’s control of Italy. To prevent the return to a dictatorship, the Constituent Assembly created an electoral system that was more representative of the people and ensured regional devolution with 100 constituencies across 20 regions electing between three and nine Deputies depending on their size (Italian Constitution, 1948: art. 56, 57). This distribution of power prevents the possibility of totalitarian rule and thus achieves the democratic aspiration of constitutional change. However, the current electoral system has undergone many changes due to its struggle to produce workable coalitions. In 2013, the Constitutional Court deemed parts of the electoral system used in the last three elections, unconstitutional. This epitomised Italy’s struggle to find an electoral system that adheres to the constitution and guarantees democracy whilst producing workable coalitions. Fortunately, Italy has recognised the importance of modernising its constitution in order to ensure that democracy works in a ‘consistent and satisfactory manor’ (Pasquino, 2000: 93). Consequently, the new ‘Italicum’ electoral system was approved in 2015. Whilst, this system aims to ensure workable coalitions, some critics remain sceptical (Pasquino, 2015).
Another fundamental part of any democratic regime is human and civil rights.
The Italian constitution, therefore, outlines these rights in meticulous detail and highlights their importance (Italian Constitution, 1948: title I, till II). As a response to the injustice and violence that dominated the fascist regime, article two of the constitution both demonstrates that the Republic recognises the value of ‘inviolable rights of the person’ and guarantees them (Italian Constitution, 1948: art. 2). This prevents the violation of human rights in the way that the Fascist regime did. Under Mussolini, for example, the Blackshirts, a ‘fascist squad, armed and in uniform, killed, maimed and destroyed property with very little intervention from the state’, who sometimes even encouraged this violence (Foot, 2003: 56, 82). Therefore, the current constitution further safeguards civilians from this type of violence in protecting the inviolability of the home and personal liberty (Italian Constitution, 1948: art. 13, art. 14). These articles are necessary checks in the constitution which guarantee basic human rights and prevent the return to totalitarianism in prohibiting the use of violence to gain political support as the Blackshirts did. Furthermore, the fascist regime also violated human rights through its treatment of the Jews. Unlike Hitler, Mussolini’s anti-Semitism was never at the core of his belief and he exempt Jewish war veterans from anti-Semitic legislation (Neville, 2004: 117, 118). Nevertheless, in 1938, a law on the provisions for the defence of the Italian race was passed which severely limited Jewish liberties, prevented Jews from having certain jobs and violated their basic rights. (Law No. 1728, 1938). Consequently, in order to prevent racial persecution in the future, the Italian constitution prioritises equality in ensuring the equal social dignity of all citizens without distinctions (Italian Constitution, 1948: art. 3). However, after signing the Treaty of
Rome in 1957, Italian Law had to conform to European Law. Unfortunately, discrepancies between the two systems has lead to Italy being taken before the European Courts (Foot, 2003: 73). In 2009, for example, Italy was condemned by the European Court of Human Rights for failing to carry out a thorough investigation into the death of Carlo Giuliani (Scholl, 2013: 189). Whilst this leads us to question the success of the new constitution in ensuring human rights, in general, Italy prioritises the rights and the equality of all its citizens. The aspiration of constitutional in upholding democracy through equality is consequently achieved.
Finally, the preservation of human rights is inextricably associated with the judiciary of which the Constitutional Court is an important strand. Although primarily its role is to suppress unconstitutional legislation, it can be asked to intervene in conflicts between the regions and the state and is essential in holding ministers to account (Italian Constitution, 1948: article 134). The latter is extremely important given that under Mussolini it was difficult to prosecute Grand Council members without the authorisation of the Grand Council itself (Law No. 2693, 1928: art. 9). Additionally, the Constitutional Court had an integral role in the reform of the penal code which began after pressure from below in 1956 (Foot, 2003: 74). This was necessary because despite constitutional change in 1948, there was no extensive reform of the Rocco Penal Code which was introduced under Fascism (Foot, 2003: 74). This was a lengthy process and until 1981, for example, the Rocco Code allowed atrocities such as ‘honour’ crimes against women, despite the constitution recognising the equality of men and women in marriage (Bettiga-Boukerbout, 2005: 239)(Italian Constitution, 1948: art. 29). The initial lack of reform of the penal code and the time it took to complete these reforms were considerable failures of constitutional change. However, through the Constitutional Court’s response to these failures, in recognising and correcting unconstitutionality, we see its success in ensuring democratic practices and thus it is fundamental in achieving the aspirations of constitutional change in upholding democracy.
In conclusion, it is evident that constitutional change in 1948 was essential in Italy’s evolution from dictatorship to democracy. The changes made to the role of Head of State, Parliament and human rights laws, at this time, proved integral in preventing a return to totalitarian rule in successfully upholding fundamental democratic practices. In my opinion, the checks placed throughout the constitution which ensure democracy, are its most important aspects because they have made the return to a dictatorship almost impossible. Additionally, some constitutional changes since 1948, notably electoral reforms, have questioned Italy’s ability to ensure the simultaneous existence of democratic practice and an efficient political system. Italy’s constitution therefore appears never-ending with many changes still needing to be made (Pasquino, 2000: 93). Fundamentally, however, since 1948, Italy has not returned to a dictatorship and therefore, for the most part, Italian constitutional change has succeeded in achieving its aspirations of safeguarding democracy.