28 Mai 2018

The People vs. the Elite: Italian Dialectics and the European Malaise

Stormy times are ahead: there is no respite from crisis in our little so-called civilised world. Once again, Italy is at the epicentre of a constitutional and political turmoil that may have serious repercussions for the whole European continent. However, at each turn the stakes look higher, as if we were trapped in a never-ending role-play simulation testing the basic tenets of representative democracy. As a matter of fact, much more than classic authoritarian governments in central and Eastern Europe, Italy has been a laboratory of populism and a case study for the decline of the liberal model for the last 30 years. The current situation is only the tip of the iceberg, with clear (albeit fictional) dialectics. “The people” suggest a simple, quick way out of complexity. “The elite”, instead, appear aloof and untrustworthy. Democracy, according to this dialectics, can only be protected by pleasing the former – never mind that “the people” is often a smokescreen, hiding concrete plans and targets identified by concrete individuals. What follows is an attempt to sketch the main issues and events of the past weeks.

As well known, the Italian elections in March were won by the Five Star Movement and the League. The former is an anti-establishment group and led by Luigi Di Maio. The latter is a Northern Italy separatist party, which has however recently turned into a national party, with some degree of support even in Southern Italy. The elections have confirmed the rise of both parties. However, unlike in other Western European countries, their programmes and actions do not always comply with constitutional conventions, and sometimes clash with a few important provisions of the Constitution.

For a start, their decision to make use of an instrument of private law (a contract) to regulate their political relationship (only superficially resembling the German Koalitionsvertrag) has raised some doubts. For example, if coupled with their announced plan to eliminate the clause forbidding parliamentary mandate (Article 67), this is a clear attempt to radically modify the liberal democratic premises of the Italian Constitution. Various versions of “parliamentary mandate” only exist in a few countries in the world, and even in these cases the legal-historical context should be carefully considered. For example, although Portugal has an “anti-defection clause”, each MP may simply decide not to register in any other party, after leaving his/her own, thus circumventing the clause itself and act as “independent MP”. Moreover, there exist clear rules ensuring democratic participation, whereas the Italian Constitution vaguely calls on citizens to contribute “democratically” (though political parties) to determining national politics (Article 49). In other words, eliminating the clause without providing for additional provisions aimed at ensuring that the MPs’ will is not coerced is not recommendable.

Moreover, the recent events leading to the designation of Giuseppe Conte as candidate Prime Minister and Paolo Savona as Finance Minister have spurred controversies from different perspectives. Italian President Mattarella has refused to appoint Savona, due to his public statements in favour of Italy’s exit from the Eurozone. As a result, Giuseppe Conte has stepped down. The most delicate issue concerned the question whether the President of the Italian Republic has a power of veto over the choice of the ministers of the government. Some scholars and opinion makers, within and outside Italy, have argued that Mattarella’s decision may strengthen Euroscepticism. This is a political observation, which may or may not be right and will not be analysed here. Much more importantly, they have also argued that the Constitution did not allow Mattarella to go against the indications of the winning parties. He should respect the will of the majority of the electorate, and should abstain from interfering with the political choices of the future Prime Minister.

These considerations are not correct and follow from a superficial reading of the Constitution. First of all, according to Article 92, the President of the Italian Republic has the power to appoint both the Prime Minister and, upon the latter’s proposal, the Ministers. He does so through a Presidential Decree, which he himself signs. As a result, he may also choose not to appoint a minister, at least in principle. In ordinary circumstances, he is bound to follow the Prime Minister’s indications. However, in exceptional circumstances, threatening national unity or the interests of the Italian people, he, as Hüter der Verfassung, may veto such indications. In this particular case, Mattarella’s personal suggestions have also been rejected and no other name has been suggested by the political leaders.

Second, as pointed out by the Italian President, had the minister been chosen, the position of Italy as regards the Eurozone would have been unclear. This is a sufficient reason to refuse to appoint the minister – bear in mind, not the Prime Minister, but only one of his ministers. Neither the Five-Star Movement nor the League has clearly won an electoral mandate to leave the euro, following a public debate in which all pros and contras have been carefully examined. On the contrary, especially in the case of the Five Star Movement, their political objectives in this context have been rather ambiguous. The experience of the Brexit referendum, after which, once more information have spread, many Brexiteers have regretted their choice, should caution against quick, unreflective decisions.

To be sure, it is not the first time that the President of the Italian Republic refuses to appoint a minister suggested by the Prime Minister. It has happened even recently, with other Presidents and other Prime Ministers (including Renzi and Berlusconi), and in much less exceptional circumstances. Although one may discuss, more generally, on the extent to which the President of the Republic may interfere in the government’s political decisions, the current events should not raise doubts as to the correctness of Mattarella’s decision. Any proposal to impeach the Italian President is pure nonsense.

Finally, the Italian case prompts us to reflect on the relationship between people and elite, on the one hand, and on the effectiveness of constitutional settlements, on the other. Those who agree with the Five Star Movement and the League tend to promote direct democracy and popular decisionism at all costs. They disregard some fundamental features of representative democracy, as well as the commitments of the Italian Republic to the security of the European project, as enshrined in the Constitution itself. This does not mean that participation in the Eurozone or in the EU cannot be questioned. It only means that form and substance should always go hand in hand.


SUGGESTED CITATION  Fichera, Massimo: The People vs. the Elite: Italian Dialectics and the European Malaise, VerfBlog, 2018/5/28, https://verfassungsblog.de/the-people-vs-the-elite-italian-dialectics-and-the-european-malaise/, DOI: 10.17176/20180529-113220-0.

12 Comments

  1. Steven Verbanck Di 29 Mai 2018 at 09:17 - Reply

    Which minister countersigned these decisions of the president? (art. 89 Constitution) The outgoing PM?

  2. Massimo Fichera Di 29 Mai 2018 at 12:46 - Reply

    In order for the decision of the President to be counter-signed, there needs to be a formal Presidential decree. The Prime Minister counter-signs both the ministers‘ appointments and his/her own.In this case there was no formal decision.

  3. Alfred Di 29 Mai 2018 at 13:00 - Reply

    You are wrong. Article 92 does not give the President of the Republic the possibility to refuse to appoint either the ministers or the Prime Ministers. He has no discretionary powers.

  4. Massimo Fichera Di 29 Mai 2018 at 16:01 - Reply

    Article 92 may be interpreted and has been interpreted in the past as meaning that the President of the Republic has some degree of discretionality in some circumstances. For example, in 1994 Prime Minister Berlusconi suggested as Justice Minister one of his lawyers. The name was rejected by the President and, as a result, he was finally appointed as Defence Minister. In this particular case, the candidate Prime Minister refused to set up a government, because he considered any other possible name as not viable.

  5. Leser Mi 30 Mai 2018 at 10:02 - Reply

    The problem seems to be similar to Art. 82 Grundgesetz (German constitution). That norm doesn’t state explicitly if the Bundespräsident has the right to refuse to sign a law, but the norm is commonly interpreted that way.

    https://de.wikipedia.org/wiki/Bundespr%C3%A4sident_(Deutschland)#Unterzeichnung_und_Pr%C3%BCfung_von_Gesetzen

    The discussion, to may knowledge, doesn’t go so far as to grant him the right to refuse laws on a purely political basis, but only for legal reasons. But the interpretation of law seems to be similar, and in a different legal and political framework, why not also include political reasons?

  6. Massimo Fichera Mi 30 Mai 2018 at 12:28 - Reply

    Thank you for your observation. The question is whether in this particular case the reason to reject the appointment of a minister is purely political. I believe it is not. The question whether or not Italy should be part of the eurozone has not been clearly discussed during the electoral campaign. Both parties are ambivalent about this issue and still continue to be so. Pursuing an anti-euro government policy despite failing to discuss the issue publicly can be considered to be a ground against the „interests of the Italian nation“. The President of the Republic may act to defend these interests. Moreover, „the constraints deriving from EU law“ limit the State’s legislative powers (Article 117) and the commitment to European integration is ensured by Article 11. Of course, the interpretation of the powers of the President may vary and Italian Presidents have interpreted their own powers differently.

  7. Leser Mi 30 Mai 2018 at 13:53 - Reply

    By „purely political“ I didn’t mean to question or critize the president’s decision or your legal assessment.

    I just tried to support it from a German perspective: Here, the president may only act because of breaches of constitutal law. There’s a discussion if that only refers to procedural or also to substantive law. Defending the nation’s interests are not a matter even of substantive law, I think – at least, to my knowledge, that question has never arisen so far.

    But that there is some level of control he or she may exert is a common assumtion. But it isn’t written down in the constitution, at least on expressis verbis. And the same may be true for the Italian constituion: There’s not always a clear, concise rule on every subject, but the law, sadly, is like all other human products: full of mistakes and oversights. If common sense and application of legal analysis comes to the conclusion that a president is allowed to defend the nation’s interests, that doesn’t sound all that wrong to me.

  8. Massimo Fichera Mi 30 Mai 2018 at 15:44 - Reply

    Yes, I agree. The comparison between Italian and German Constitution in this context is also very interesting.

  9. Alfred Fr 1 Jun 2018 at 07:18 - Reply

    In essence, you are arguing that the Italian President of the Republic is a political body and decides on a government’s policy. That sounds bizarre to me. Surely before Mattarella none has gone this far…

  10. Massimo Fichera Fr 1 Jun 2018 at 14:49 - Reply

    Thanks for your comment. The President of the Republic has an active role in the procedure of appointment of the ministers and the Prime Minister. This role is not „political“, but consists in the safeguard of fundamental constitutional principles. In particular, the Constitution confers on him/her substantive powers in some areas. Budgetary policies and foreign policy, including Italy’s commitment to the European Union project, are some such areas. As a result, he can refuse to appoint a particular person, of course provided this is not due to personal or purely political reasons.As noted in the text, although it is true that this is a special case, there are precedents. In particular, it is possible to observe in recent years the growth of the Presidents‘ powers, due to the intense and anomalous period of crisis that Italian politics has gone through.

  11. Frederik Hensen Mo 4 Jun 2018 at 09:40 - Reply

    It may be argued though that since the governmental pact did not contain elements allowing president Mattarella to believe the italian (european) interests were at stake, his decision not to confirm Savona as finance minister was political. A minister acts under the responsibility of the prime minister who had previously publicly declared to act in line with the 5Stelle-Lega agreement. So in my view the question is whether Mattarella made good use of his constitutional right to refuse the nomination of a minister and whether, by acting as he did, he has not weakened rather than strengthened the presidential function.

  12. Massimo Fichera Mo 4 Jun 2018 at 13:39 - Reply

    This is a reasonable question to ask. I believe that it very much depends on what use Mattarella’s successors will make of the Presidential powers. It is a fine line, and as a result abuse is easy. Of course, it can be also argued that the powers of the President have been stretched to the outer limit. Concerning your argument that Mattarella’s decision was political, in my view this would have been the case if he had questioned the League’s anti-immigration policy, or similar policies. In any case, Mattarella’s intention was not to prevent any kind of debate on whether Italy should stay in the eurozone, but simply to allow more time to discuss the issue. His veto was not on the whole government, which in fact is now in power with Savona as Minister for European Affairs.

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