The Italian Constitutional Court should have ruled on the validity of a renewed candidature to the presidency of Italy. The Italian Constitution rests on more than one pillar: there is the codification in the text; there is precedent; there are court rulings; there is interpretation by distinguished scholars incorporated in re-castings of the code; there is the history of the constitution itself which brings with it the precedent and rulings and interpretations of the constitution/s on which it draws or has been modelled; then there is the influence of supra-national law and many other influences that any constitutionalist will list.
Suffice it to say that the Italian Constitution does not exist
solely in a text . Even less so does it exist in a vacuum - it is,
and must be, part of democracy which derives from many and deeply-rooted
sources, both in time and in space.
Thus to watch the democratic charade enacted yesterday in the
Italian Parliament was very painful. Certainly the democratic
procedures of voting were pompously observed - but the doubtful legitimacy of the
candidature remained unaddressed. Only the Constitutional Court is
constitutionally and technically equipped to address the legitimacy of
the candidature of a sitting president to his own succession.
For a start Napolitano 1 is in office until 15 May, his powers
constitutionally and deliberately weakened in the last 6 months of
that office. Napolitano 2 is over-riding that constitutional provision by
taking office tomorrow. Has Napolitano 1 resigned? Or are we to have
two presidents as we have two popes? The fact that the man is the same
person does not extinguish the provisions made to prevent the
inappropriate use of presidential powers at the end of a presidency. Nor does the fact that the code is silent imply that other constitutional resources do not forbid a candidature we are expected to endorse in the name of some greater good.
Rules matter. Without them there is no democracy.
It has just been announced that Napolitano has 'formally resigned' from the presidency prior to the swearing-in ceremony this afternoon. So if Italy means to declare war anytime between now and half past five this evening it'll be the Speaker of the Senate who does it. More important matters, such as reaching for power outside the constitutional mandate are, however, continuing apace under Napolitano's own steam.