The Secretary of State to the Ambassador in Italy ( Kirk )
1899. Dept does not agree with AC Legal Adviser’s opinion (urtel 2599 Sept 6) on Constituent Assembly. It is Dept’s view [Page 990] that since Ital constitutional law in strict sense of term is based on Statuto,59 such law cannot determine nature and functions of Assembly.
Present Ital Govt, with ultimate law-making power vested in Council of Ministers and Lieutenant General, is only legal Govt of Italy. This Govt’s powers are without legal limits, except those arising from surrender to Allies, and those self-imposed. Having power to provide for Assembly, present Govt also has power to provide for procedures, including power to restrict Assembly to its essential task of forming new constitution, as was in fact done in Decree Law 151, June 25, 1944.
Ital constitutional law in broadest sense may be understood to mean Ital and foreign precedents for Assembly, but there are scarcely any relevant Ital precedents and phrase Constituent Assembly as used in modern Italy has had varied meanings.
To interpret term Constituent Assembly to mean body which both governs country and drafts new constitution is to choose European precedents wherein revolutions or breakdowns of previously existing legal regimes occurred, thus requiring assembly to perform two different functions of governing and drafting new constitution. Case of Italy is different because legal regime exists which is under obligations to Allies and is competent to administer country during sessions of Assembly.
Strict construction of Law 151 of June 25, 1944, which speaks only of Constituent Assembly to devise new constitution, and which attributes to it no other functions, would require body to confine itself to one task. Law mentions new parliament which means parliament to be created by Assembly, and contemplates continuance of Council of Ministers as governing authority until new parliament comes into being.
Moreover, solution of institutional question must be achieved within framework of Joint Declaration of October 13, 1943, which stipulated right of Ital people to choose democratic form of government by constitutional means. This means legal continuity must be observed. Relevant foreign precedents for such procedure might be Constitutional Conventions as held in U.S. These constituent assemblies confine themselves strictly to constitution-making and do not attempt to govern.
Dept is informing Brit Govt60 of sense of foregoing with view to initiating discussions with Ital Govt, as it is felt Allied pledges to Ital people require continued efforts of this Govt to promote democratic processes in Italy and to ensure that new Ital state is founded on [Page 991] democratic principles. In meantime you may bring Dept’s views informally to attention of Allied Commission. Despatch follows.61
- The Statuto was the constitution issued by Charles Albert for his kingdom of Sardinia on March 4, 1848. It became, by extension to the other parts of the country that were subsequently annexed, the constitution of Italy.↩
- Memorandum to the British Embassy, November 13, 1945, not printed.↩
- No. 812 of November 16, 1945, not printed; it enclosed two copies of a memorandum prepared in the Department entitled, “Powers of the Italian Government versus the Constituent Assembly.” (865.00/9–645)↩