Regions, the Consulta: "The ban on the third mandate is a fundamental principle". Final blow for De Luca and Zaia
The Constitutional Court has put a 100% end to the ambitions of Luca Zaia and Vincenzo De Luca to run again for the presidency of Veneto and Campania . The reasons of the Constitutional Court for the rejection of the regional law of Campania, with which De Luca had tried to run again for a third term, are unequivocal.
With sentence number 64, filed today, the constitutional illegitimacy of article 1 of the Campania regional law number 16 of 2024 was declared, for violation of article 122, first paragraph, of the Constitution, in relation to the interposed parameter referred to in article 2, paragraph 1, letter f, of law number 165 of 2004, containing the so-called prohibition of the third consecutive mandate of the president of the regional council elected by universal and direct suffrage . This was announced by the press office of the Consulta. The Constitutional Court has affirmed that this prohibition is for the Regions with ordinary statutes a fundamental principle of electoral matters pursuant to article 122, first paragraph, of the constitution. It constitutes the expression of a discretionary choice of the legislator aimed at balancing conflicting principles and acting as a "systemic temperament" with respect to the direct election of the monocratic summit, to which it acts as a "considered counterbalance".
Nor can the prohibition imposed by the state legislature be considered constitutionally illegitimate because it pertains to the form of government, which Article 123, first paragraph, of the Constitution leaves to the statutory autonomy of the ordinary Regions. The notion of form of government is restricted to the immediate definition of the relationships between the political bodies of the Region, which excludes electoral matters in the broad sense, including the regime of limitations on the right to stand as a candidate. Generally speaking, the mandatory nature of a fundamental principle and its application cannot be conditioned by its express implementation by regional laws . Again generally speaking, even rules that have a specific and specific content can be recognized as having the nature of a fundamental principle. The prohibition of the third consecutive mandate has this nature, because, as is generally typical of all prohibitions, it expresses a precept that is "specific in itself", which in order to be applicable does not require any integration by the regional legislator, who, however, remains with some "interstitial" spaces for regulation.
In the case of the prohibition of the third consecutive term, however, it was the state legislator itself that anchored the application of the principle to regional legislation that is in some way connected to the direct election of the President of the Regional Council. It follows that laws of the ordinary regions that have intervened in electoral matters after the entry into force of law number 165 of 2004 cannot, under penalty of unconstitutionality, violate the principle in question, which is now an integral part of the respective legal systems. In the case of the Campania region, the prohibition of the third consecutive term became operational with the entry into force of Campania regional law number 4 of 2009, i.e. with the electoral law , which not only does not contain any provision that illegitimately derogates from it, but in Article 1, paragraph 3, contains a reference, "insofar as compatible with this law, [to] other state or regional provisions, including regulatory ones, in force on the matter". The contested provision - in the part in which it introduced after several years a specific derogation from the prohibition, excluding, in substance, the computability of previous mandates with respect to the current one and therefore allowing the outgoing President of the Regional Council who has already served two consecutive mandates to be re-elected in the next regional elections - is therefore in conflict with the aforementioned fundamental principle, in violation of Article 122, first paragraph, of the Constitution . The Constitutional Court has finally clarified that no relevance can be attributed to the circumstance that similar regional laws aimed at preventing the operation of the principle of the third consecutive mandate have not been challenged by the President of the Council of Ministers, without prejudice to the fact that their possible constitutional illegitimacy can be asserted, in the ways provided for by the legal system, incidentally.
Affari Italiani
