Paving the Way to Autocracy?

On November 3, 2023, the Italian Council of Ministers approved a Bill to amend the Constitution, encapsulating what Giorgia Meloni’s Cabinet advertises as a measure to enhance executive stability and streamline policy implementation for medium to long-term objectives (as already commented on this Blog). The approval is the first step of a process that, according to Article 138 of the Constitution, must undergo several stages before reaching its goal. The process requires two successive deliberations of the exact text by each Chamber, with the second deliberation requiring at least an absolute majority of the Chambers.

Given the consistent majority that the centre-right coalition holds, there is a chance that the Bill could see completion. However, it is likely that the opposition will call for a confirmative referendum, which, according to the same Article 138, must be held when requested by one-fifth of the MPs, five hundred thousand citizens, or five regional councils within three months from the publication of the constitutional amendment. The only scenario where the constitutional law takes immediate effect, thereby precluding the call for a referendum, is when it is approved by a two-thirds supermajority in both Chambers.

Over the past two decades, two major attempts (one promoted by the late Mr Silvio Berlusconi’s centre-right government, another by Mr Matteo Renzi’s centre-left government) to amend the “form of government” of the Italian Parliamentary system have been rejected through a referendum.

The proposal is presented almost as a minor adjustment on the Government’s part. In the press release of the Bill, it is stated that “the text is inspired by a “minimalist” criterion of constitutional change, as a way to operate in continuity with the Italian constitutional and parliamentary tradition and preserve to the maximum extent the prerogatives of the President of the Republic, a key figure in national unity”.

Be it as it may, the proposal has already created a heated debate across the political spectrum and among commentators and scholars. One finds dissonating voices even within the ranks of the governing parties. On the one hand, critics from the right seem unhappy with the allegedly mild intervention to contain the powers of the President of the Republic towards the legislature and the executive. On the other hand, critics from the left accuse the government of pandering to populist sentiments and setting the stage for an autocratic shift.

This blog post argues that the alleged minimalist nature of the reform advertised by the government is misplaced, and that the aforementioned critiques have plausible grounds from their respective perspectives. While it is a matter of values and ideals to decide which of the two positions is more convincing, the reform project also raises genuine legal-constitutional issues that we will explore further.

A profound change

The Bill can be considered minimalist only in the sense that it significantly amends just two articles of the Constitution (92 and 94) to introduce the figure of a Prime Minister elected directly by citizens for a 5-year term. However, this would represent a profound change in the Italian political system, which is currently centred on a parliamentary regime. In the existing system, after elections, parties form coalition governments, “wisely guided” by the President, who has the power to appoint the Prime Minister and other ministers. According to an unwritten rule, the President takes into account the results of the elections when making these appointments.

The President plays a role that is above party politics but is not merely a notary. In fact, the President enjoys significant discretion during coalition crises or national emergencies. It has often been the case that new cabinets were formed, politically different from those “expressed” by the electorate, thanks to the President’s moral suasion. The President has the power to dissolve Parliament, but this prerogative has traditionally been used as a last-resort option. The proposed bill aims to end the long-standing practice of forming successive cabinets during a parliamentary term. To further strengthen the position of the directly elected Prime Minister, the bill stipulates that Parliament is automatically dissolved if it does not give a vote of confidence to the new government.

During the cabinet’s term, the proposal provides an exception to the “stand together or fall together” rule. In the event of a cabinet crisis, the President of the Republic, instead of immediately dissolving Parliament, can ask the elected Prime Minister to try again or assign an MP elected by the coalition the task of forming a new government and gaining Parliament’s confidence. This potential new Prime Minister, who must be an MP – a departure from the current system – must adhere to the same manifesto as the elected premier to receive this mandate.

However, if this second-choice cabinet fails, it would lead to new elections. This rule, dubbed “anti-ribaltone” (anti-big turnaround) by commentators and politicians, suggests that the practice of forming cabinets with runner-up parties from the last elections would be akin to overturning the will of the electorate.

However, there are at least two problems with this narrative. Firstly, under a proportional electoral system where coalitions are formed in Parliament post elections, attributing a specific will to the people seems arbitrary. Secondly, the proposed provision cannot guarantee against defections. An MP elected with the Prime Minister’s coalition who, along with other colleagues, switches to the opposition qualifies for the President’s mandate. The only other requirement is that the former opposition is willing to endorse the original Prime Minister’s manifesto, leading to a potential “ribaltone”.

This awkward provision aside, without touching the provisions dedicated to the President, the bill significantly reduces their role in the governmental architecture, shifting the balance of power considerably towards the Prime Minister. To further strengthen their position, the proposal introduces a majority bonus into the Constitution – an absolute novelty since the Constitution has never contained electoral rules – aiming to secure one party or coalition a solid majority in Parliament. A clause in the Bill stipulates that the winning party or coalition must be awarded at least 55% of Parliamentary seats, regardless of their share of the votes.

The President’s Role and Parliament’s Supremacy

From the perspective of some right-wing critics, a significant flaw in the reform is that the Prime Minister cannot dissolve Parliament independently. They must negotiate this outcome with the Parliament and the President of the Republic, albeit with limitations. According to Marcello Pera, a senator from Fratelli d’Italia (Miss Meloni’s party) and a prominent political philosopher, even though the reform is labelled “premierato” in the media parlance, a system where the Prime Minister cannot dissolve Parliament is not a true premiership.

Professor Pera believes the President should be treated as the monarch in the Westminster parliamentary system. However, under the proposed reform, the President retains the power to dissolve Parliament and appoint ministers on the Prime Minister’s proposal. The anti-turnaround clause is particularly peculiar in this context. As noted by Francesco Bilancia, the power to dissolve Parliament effectively lies with the successor Prime Minister: après moi, le déluge!

Indeed, if this alter ego Prime Minister resigns, there is no other option than new elections. Let us notice that, under this new system, President Mattarella would not have been able to appoint Mr. Mario Draghi as Prime Minister during the COVID-19 pandemic; nor could President Napolitano have appointed Mr. Mario Monti as Prime Minister in 2011 amidst the financial crisis. Both Draghi and Monti were technocrats who were not Members of Parliament. Moreover, the concept of a “Prime Minister in waiting” undermines the goal of executive stability. A deputy may be tempted to work towards assuming the Prime Minister’s position from the outset. This dynamic is evident in the current coalition government, with commentators highlighting the dualism between Miss Meloni and the Deputy Prime Minister, Mr. Matteo Salvini, leader of the “League”.

These shortcomings impact a fundamental characteristic of the Italian post-totalitarian 1948 Constitution in a traditionally multi-party political landscape. The founding fathers aimed for a check and balance system where the Presidents role (elected for a 7-year term with a supermajority by the two Chambers sitting as one) is flexible enough to intervene in difficult situations between the executive and Parliament. While Miss Meloni’s Government claims to value this key role of the President, the Bill seems to move in the opposite direction.

The choice to directly legitimize the Prime Minister through popular vote, a concept foreign to Western European Parliamentary democracies, inevitably clashes with the President’s role and Parliament’s supremacy. As mentioned above, this decision even encourages authoritative members of the same governing coalition to bypass the President’s mediating function.

The envisaged system has nothing to do with the German constructive vote of no-confidence either. In the German system, to ensure government continuity, a majority of the legislature must agree on a candidate to form an alternative coalition when they want the cabinet to resign. The proposal in question, however, aims to allow a one-time replacement of the Prime Minister within the same coalition. This is vaguely similar to what happens in the UK when there is a change in party leadership, but the context is entirely different from Italy. Moreover, the people do not elect the UK’s Prime Minister.

The real goal appears to be cementing the Prime Minister’s grip on power after general elections, as evidenced by the intention to enshrine the majority bonus in the Constitution. There is a long-standing idea in Italy to “simplify” the multi-party system (allegedly the cause of governmental instability) by manipulating electoral rules. However, it’s important to remember that numerous attempts since the mid-nineties to transform the Italian political system into a bi-party democracy using complex (mixed) electoral systems with a majority flavour have all failed. Instead of simplifying, the political landscape has become even more fragmented.

Finally, from a constitutional law perspective, the majority bonus raises a fundamental issue related to how the Italian Constitutional Court interprets the eternity clause in the Constitution. This clause states that the “republican form of the state” can never be changed (art. 139). By linking the republican form (as opposed to the monarchy compromised with the fascist regime and rejected by referendum during the constituent process in 1946) with the democratic principle in Article 1 of the Constitution, the Court has developed a doctrine of unwritten constitutional barriers to amend the Constitution (judgment n. 1146/1988). In several judgments, the Court has invalidated electoral legislation that, by assigning majority bonuses to a coalition without direct reference to citizens’ votes, undermined the representative criterion essential to a functional democracy. Therefore, the attempt to bypass scrutiny of the majority bonus by amending the Constitution could collide with the doctrine of implied unamendable constitutional norms if the Court upholds its substantive notion of effective representative democracy as a fundamental constitutional principle.