A Constitutional Reform in Italy to the Detriment of Systemic Balance

Italy is currently discussing an important reform of its constitution: the introduction of direct elections for the head of government. This is to take place together with the election of both chambers of parliament. In addition, the composition of the two chambers is to be significantly influenced by a new “majority bonus” to be anchored in the constitution.

The draft bill penned by the current government under Giorgia Meloni has passed a six-month review in the Senate’s Constitution Committee with a few amendments and is now up for vote in the plenary of the Italian upper house. Although further modifications here and in the other parliamentary chamber, the Camera dei deputati, cannot be  ruled out, the aim of the reform is not in doubt: the catchphrase of a “premierato”, a system of government specifically tailored to the person of the prime minister, is emerges clearly.

Lavoisier’s principle of chemistry, according to which the same quantity of matter (or power) exists before and after each operation (il y a une égale quantité de matière avant et après l’opération) also applies to constitutional law. Therefore, the question arises which organs, institutions and structures in the Italian constitutional state should lose power if the head of government is to be given noticeably more power. In other words, the reform obviously and primarily benefits the position of the head of government, so that an answer to the meaningful question “cui prodest?” – in whose favour? – is clear. However, the related question “cui obest?” remains to be addressed: to whose detriment?

The Head of State as guarantor of systemic balance

With the introduction of the direct election of the prime minister, the reform text ties in a profound weakening of the head of state, the Presidente della Repubblica. Above all, he would relinquish his powers on forming governments and dissolving parliaments, which make the Italian head of state a moderator of power transitions and a guarantor of systemic balance. The former President of the Italian Constitutional Court, Giuliano Amato, coined the term “accordion” in the hands of the President. As long as the workings and power relations in the parliamentary system are clear, the influence of the head of state remains small and he is left with a notary type of role. However, if party politics becomes entangled in a crisis, the President’s options for resolving the crisis become more relevant. From small to large with different tones, like an accordion. The current head of state, Sergio Mattarella, a former professor of constitutional and parliamentary law and himself a former constitutional judge, has often used for his office the metaphor of a referee, who only intervenes when the game is not going according to the rules. Whether music or sport, these similes clearly explain the role and position of the tenant of the Quirinal Palace, the President of Italy.

Decisive for this role are the conditions to which the powers of the head of state are linked. The Constitution of 1947 does not specify any preconditions to which the exercise of presidential powers is subject in the moments of government formation, government crisis and in the decision to dissolve parliament. However, the written constitutional law is supplemented by unwritten, but nonetheless respected, constitutional practices that define and characterise the president’s scope of action more closely. In addition to procedural provisions, such as the hearing of all parliamentary forces (the famous consultazioni), unwritten constitutional law obliges the president to pursue the goal of the greatest possible stability and to maintain the elected parliament: if there is a possible majority for a (possibly new) government in the current parliament, the Quirinal will always have to favour this option over early elections. This reduces the scope for tactically one-sidedly scheduled snap elections and political bets with the voters’ favour, protects functioning parliaments from the will of individual actors and gives priority to the principle of parliamentary stability. This also explains why, despite the well-known large number and (especially before 1996) short life of Italian cabinets, early parliamentary elections in Italy remain the exception rather than the rule.

This interplay of written and unwritten constitutional law gives the head of state significant control options in times of political crisis and it obliges him to prioritise parliamentary stability. This, admittedly, represents a considerable restriction on manoeuvres of party-politically motivated actors, above all the prime ministers, who cannot discipline their coalition or majority with the threat of a final whistle, as the referee in the crisis and guard of constitutional practices does not form part of party politics, but is enraptured in the Quirinal Palace.

This role of the president over government crises and new elections in the conception of the 1947 constitution and in the ratio of actual constitutional practice fits well with the other constitutional powers of the Quirinal – from the appointment of one third of the members of the Constitutional Court, also free of conditions and advice, to the chairmanship of the highest self-governing body of justices. This does not result in a monarque républicain, but rather a pouvoir neutre with strong competences, which moderates the most orderly possible interaction of all state powers in their various competences and also guarantees the systemic balance in the constitutional state when necessary.

The desired transformation to a one-(wo)man system

The current constitutional reform is clearly directed against this constitutional construction. It wants to make a prime minister, who will be directly elected, the master (or mistress) over life and death of parliament by transferring the powers of the president on dissolving parliament and forming governments to the head of government, or removing them completely. The president would be deprived of his discretionary powers and guarantor functions. Parliament would be completely dependent on the acting prime minister. Even in the event of the premature death of the head of government, the head of state would be bound by the will of the deceased and could only appoint as his successor a member of parliament from the parliamentary majority of the deceased and who formally swears to continue his (or her) government programme. The planned adoption – in the amended Art. 94 of the Constitution – of an instrument purportedly inspired by the German constructive vote of no confidence also proves – on closer inspection – to be an ill-intentioned parody of Art. 67 of the German Basic Law, as a parliamentary majority would be prevented from electing an alternative head of government except in cases of involuntary termination of the previous prime minister’s term of office. Under the system planned by the current constitutional reform, there would be no chance of maintaining elected parliaments in which a (possibly new or newly elected) government majority would still be possible: the legislative and executive branches would be entirely dependent on the will of the directly elected head of government.

The ratio of the Meloni’s constitutional reform emerges clearly. It pursues a profound transformation of the system that would change the parliamentary system of government, which is based on systemic equilibrium and with the President of the Republic as its guarantor, into one in which a single person would be elected by the people and he or she would freely dispose of two state powers, executive and legislative, for one whole legislative term. According to this conception, the umpire duties of the head of state must be transferred to the most powerful player in the political arena, so that the latter can be entirely governed by him and his (or her) direct relationship with the electorate. Coherent with all of this is an additional innovation envisaged in Art. 89 of the Constitution: according to it all official acts of the President would be, with a few exceptions, in the responsibility of the executive and could only be carried out on its advice. This completes the circle of a far-reaching disempowerment of the Presidente della Repubblica and his transformation from guarantor and guard of constitutional procedures to a mere state notary. This would be the final blow to the presidential “accordion”.

On continuities in Italy’s right-wing constitutional policy

Given the country’s constitutional history, it comes as no surprise that such proposals are coming from the political spectrum that currently governs Italy. The 2006 constitutional reform submitted to the electorate by the coalition led by Silvio Berlusconi and ultimately failed, already sought to significantly strengthen the position and powers of the head of government, who should also have been formally renamed “prime minister”, at the expense of parliament and the head of state. In addition, the predecessor parties of Meloni’s Fratelli d’Italia (MSI, AN) had for decades advocated the transformation of the parliamentary system into a presidential system of government, with a strong man – or woman – at its centre instead of a balance between state powers and a president as referee to guarantee this. Even in the early years of the Republic, after the adoption of the 1947 Constitution, the then post-fascist MSI party did not agree with the choice in favour of the parliamentary system. However, the rejection of the forces of the Italian right for supreme guarantor functions goes back even further in history: in the 1930s and early 1940s, Benito Mussolini repeatedly expressed his frustration with the role of the Italian royal family, which still existed despite the dictatorship, to representatives of the then German government and complained about its loyalty – to himself, of course. This is evidenced by a series of accounts from those years, which historians have carefully analysed.

Although comparisons between fundamentally different systems and eras do not usually help much, significant lines of continuity can be recognised here. On the one hand, the constitutional practice that shapes the role of the Italian president to this day is in part a further development of unwritten constitutional law from the monarchical period before the fascist takeover. Even then, the role of the head of state in the political system was characterised by an interplay between written and unwritten constitutional law, which – at least for the liberal era up to 1922 – resulted more in a limitation of the power of the executive in favour of the parliaments rather than a supremacy of the king. Probably also for reasons of consensus, the legislation of the fascist dictatorship (1922-1943) only ventured into the role and powers of the king to a limited extent, so that precisely the monarch’s powers on government reshuffle could be used in order to legally overthrow Mussolini in 1943. So, if the current role of the Italy’s President is a further development of the one that already applied during the kingdom era, the suspicion of Italian right-wing politics against the systemic guarantor functions of the head of state seems to owe its origins to a long-standing frustration with everything in the state that stands in the way of a vertically structured relationship between the political leader and the people. Previous system changes and generational successions seem to have done little to change the hard core of this dispute.

The wrong conclusions from chronic government instability

The fact that Italy’s executives suffer from chronic instability is known worldwide and is a constant issue in Italian politics. Appropriate solutions have discussed for decades. Whether constitutional law is the primary field in which greater government stability can be achieved through reforms is, however, an open question. In any case, it is worth noting that stable governments are certainly possible even under current law – just mention Europe’s and republican Italy’s founding father Alcide Degasperi, uninterrupted prime minister from 1945 to 1953, and the recently deceased Silvio Berlusconi, in office with undoubted stability from 2001 to 2006 and 2008 to 2011. And the current government under Giorgia Meloni also appears to be stable, thanks to the strength of the political forces which support her.

Despite all possible differences of opinion on the diagnosis and therapy for Italian government instability, the powers of the Italy’s President can hardly be considered the cause of the wide variety and the short terms of office of the executives in Rome. The interplay between constitutional text and constitutional practices obliges the head of state to provide more stability, not less. His powers only become relevant when governments are already in crisis and party politics cannot find a solution. Accusing the president of instability is reminiscent of those sports fans who, at the top of their voices, only ever blame the referee for the poor performance of the teams playing. Such a posture cannot lead to a constructive and workable constitutional policy.

In conclusion, this reform project of Meloni’s cabinet brings to light an old guiding principle that favours a vertical democracy, a one-(wo)man system, over the parliamentary system. The fact that a head of state with the powers of current constitutional law would stand in the way of such a concentration of power is not only an analytically correct conclusion, but also precisely the reason why the fathers and mothers of the constitution and almost eight decades of republican state policy have shaped the role of the president as it is. By strengthening the power of the prime minister to the detriment of the guarantor functions of the head of state, Italy would gain nothing in terms of democratic stability. Instead, it would lose a great deal in terms of checks and balances in its political system.

A German version of this text is available here.