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Despite sufficient signatures - Why referendums can fail

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dumplife Mihai Romanciuc (CC BY-SA 2.0) www.flickr.com/photos/62585343@N00/360596228/in/photolist

Despite sufficient signatures - Why referendums can fail

22-02-2022

Italy's Constitutional Court on Tuesday blocked an attempt to hold a referendum on euthanasia, transferring responsibility for legislation to national lawmakers who have long struggled to reach agreement on the right to euthanasia. The referendum on legalising the cultivation of cannabis also failed to pass while five other referendums were successful. All initiatives had enough signatures. What happened?

By Alina Krintovski

Activists had collected over a million signatures for the referendum on the right to self-determined dying, far exceeding the 500,000-signature threshold required for a referendum to change existing laws. The referendum would have proposed changes to the country's penal code regarding murder and abolished penalties for those who fulfil the wishes of euthanasia of patients who are terminally ill or in too much pain. The proposal was to allow active euthanasia in the forms provided for by the law on informed consent and the living will, and if the conditions introduced by the Constitutional Court's ruling on another assisted suicide case are met. It remains a punishable offence if the act is committed against an incapacitated person or against a person whose consent has been extorted by force or threat, or against a minor of eighteen years of age.

The initiative to decriminalize cannabis cultivation and usage has exceeded the required signatures by 100,000 and would thus in principle be eligible for an official referendum, too.

Referendums are legally binding in Italy, so the state must implement the result. Since 1947, it has been stipulated that a general referendum can be held on the total or partial repeal of a law or a measure with the force of law if requested by five hundred thousand eligible voters or five regional councils. This means that in Italy it is a so-called veto referendum in which existing laws can be renegotiated or abolished. Due to the pandemic, in 2021 it was possible to collect these signatures online for the first time.    

However, a referendum cannot be held on a law regulating taxes, the budget, amnesty or pardon, or on a law ratifying an international treaty.                       
After the signatures for a referendum have been collected, the Italian Constitutional Court must decide on the referendum. In doing so, it also examines whether the referendum is compatible with the constitution.

For the cases mentioned, the Constitutional Court has now ruled that it is not. However, the Constitutional Court ruled that the referendum on euthanasia was inadmissible because the repeal of the penalties would not ensure "the constitutionally required minimum level of protection of human life in general and in particular of the weak and vulnerable". The referendum would therefore violate fundamental human rights. In the press conference explaining the decision, President Giuliano Amato said that the approval of the referendum and a positive result would also have allowed people to get away with killing people without their consent and using euthanasia as a reason for doing so. He goes on to say that the situations in which people could make use of euthanasia must be decided on an individual basis and could not all be decided in a general way by a referendum.

On cannabis legalisation, Court President Giuliano Amato argues that the referendum would also have been about so called hard drugs like cocaine. If the referendum had succeeded, Italy's international obligations in the fight against drug-related crime would have been violated. The Cannabis Initiative initially proposed to decriminalise the cultivation of any plant by reverting to the provision of Article 73, paragraph 1, and to abolish the penalty of imprisonment for any unlawful conduct in relation to cannabis and cannabis-like substances for personal use (Tab. II and IV). This does not exclude the cultivation of, for example, opium poppies. However, not all drugs would be legalised: The offences of unlawful production, manufacture and possession would remain in the event of a successful veto and could also be applied to growers who produce for the purpose of trafficking. In this way, prosecutors and law enforcement agencies would be deprived of the last leg up in prosecuting people who grow for personal use. With the exception of cannabis and mushrooms, the initiative argues, all other plants also require a further step in the production of drugs in order to be able to finally consume them. This shall remain illegal.

The Cannabis Initiative in Italy has also had the proposal legally accredited by the Consiglio Nazio-nale Forense (CNF) in Rome. The CNF is the institutional representative body of the Italian legal profession and thus represents the entire legal profession. The initiative on euthanasia has also had the proposal confirmed by many experts from the legal and criminal law fields.

Such an initiative, which is supposed to lead to a referendum, is usually very expensive and financially based on donations and the support of associations. Accordingly, the result is sobering for all those who have supported the proposal with a lot of time and money. Accordingly, it is important that proposals are written as precisely as possible and that initiatives are carried out in such a way that success is likely.    

Image Courtesy: dumplife (Mihai Romanciuc) (CC BY-SA 2.0) (www.flickr.com/photos/62585343@N00/360596228/in/photolist...)

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