865.00/9–645: Telegram

The Ambassador in Italy (Kirk) to the Secretary of State

2599. Chief Legal Adviser to Chief Commissioner, Allied Commission, has prepared opinion of powers of Italian Govt versus Constituent Assembly along following lines:

(Begin summary of opinion) The juridical position of “Assemblea Costituente” and its relationship to Italian Govt of the day is problem to be determined essentially by Italian constitutional law and by construction of Italian Decree Law No. 151 of June 25, 1944. Consequently it is obvious that solution to problem must be found according to canons of Italian law. This problem has been discussed at length with four leading Italian jurists and their views are set out below:

The words “Assemblea Costituente” are words of art and must be considered to envisage an institution juridically associated with the general European concept of a Constituent Assembly, which derives directly from French assembly; in 1789 and possesses fundamental idea of sovereign body subject to no authority but its own and invested with all power for all purposes. When formed Constituent Assembly, will, on this basis, be invested with all power of govt and will be sovereign power in the state. Assembly could immediately remove any limitation which might be derived from terms of Decree Law 151 by amending it.

In addition to historical background jurists believe general situation and better construction of Decree Law 151 support this opinion for following reasons:

Assembly is established and given one definte task by article I of Decree Law, which however nowhere limits its functions to this one job. Rather, anybody elected by universal vote of Italian people must be regarded as sovereign.
Provision in article III states ministers will not prejudice solution of institutional question “until convocation of the Assembly”.
Phrase “the functioning of the new parliament” in article IV carries no weight since solution of institutional question will be known “immediately the result of the election is determined” and if solution is republican, King must abdicate and Lieutenant General resign. In such circumstances procedure laid down in article IV could not possibly be followed.
There is general feeling among people that Constituent Assembly is being elected by them to legislate upon all major issues of the day as well as to determine future form of state.

Certain arguments may of course be advanced on other side Legal Adviser admits:

“Assemblea Costituente” could be regarded as words of description attached to institution invested solely with powers specifically conferred in article I of Decree.
It may be inferred from article III that ministers and consequently existing govt will continue to function after convocation of Assembly since, if solution of institutional question is immediately known, no question of it being prejudiced thereafter would arise.
Continuance of present form of Govt until new Parliament is established is provided in article IV and even if the King abdicated as result of election of republican Assembly, this need not affect Council of Ministers. Furthermore King should in abdicating provide for govt through Council of Ministers pending establishment of new govt under new constitution.

Legal Adviser however says these arguments are academic since Italian jurists are unanimous.

In opinion of Italian lawyers procedure contemplated, for practical purposes, is that existing Council of Ministers will resign when Assembly convenes. While Assembly will charge them with resumption of office for normal day to day administration, it will retain all questions of policy under its control. (End of memorandum).

(See penultimate paragraph my 2465, August 25).

As result Admiral Stone addressed a letter to Prime Minister on September 3 asking for views of Italian Govt with respect to machinery of operation and powers of Italian Govt once Constituent Assembly has been convened.

It is of interest that Foreign Minister expressed view to Counselor British Embassy that “Big Three” should take hand in Italian elections and assure themselves that result is true expression of will of Italian people on basis of Moscow and Yalta Agreements and Declarations.