28 Mai 2018

Why the Italian President’s Decision was Legitimate

On 27.05.2018, Sergio Mattarella, the President of the Italian Republic, refused to appoint a government supported in Parliament by the Five Star Movement and the League, often described as the foremost populist parties now active in Italian politics.

The refusal was due to the parties’ insistence on having prof. Paolo Savona as the Minister of Economy and Finance. Counter-proposals by the President of the Republic (such as the appointment to that Ministry of a senior MP of the same majority, or of the prospective Premier) were dismissed.

Prof. Savona is a well-respected economist, and also a former Minister of Industry in the Ciampi Government (1993-1994). He has been consistently skeptical on the financial and monetary constraints enshrined in EU law. In 2015, he held that Italy should have at hand a “plan B” – to be kept confidential as long as possible – for abandoning the Euro. He also went as far as to argue that the participation of Italy to the EU is a stretch of the relevant constitutional principles, particularly popular sovereignty, because political powers on economy and money have been forfeited. A presentation of these positions can be found here.

These positions were not explicitly endorsed by the two parties and their “contract for government” (a summary in English is available here). Nevertheless, the contract seemed to go in the direction of deficit spending: but finding credit where, and at what cost? Coaxing the ECB into unconditional OMTs, or debt cancellation (as in a first draft of the contract)? Switching back to a national currency? Prof. Savona’s ideas somewhat matched with the blank spots. Moreover, the renowned economist apparently did not deny that he was ready to let the “spread” (yield spread between Italian and German bonds) soar high, to put pressure on EU institutions. Instead, he affirmed his commitment to a different, stronger and more equitable Europe (see here and here).

The President of the Republic immediately disclosed the reasons for his refusal (see here), stressing that this was the only controversial appointment in an otherwise cooperative effort to form a new government.

The reasons may be summarized as follows:

  1. Article 92 of the Italian Constitution vests in the President of the Republic the power to appoint Ministers, and this power has never tolerated, and may not tolerate, impositions;
  2. the spread is already increasing, together with investors’ concerns on the future of Italy, threatening financial stability;
  3. participation in the Euro and the EU are fundamental choices and they must be given open and serious consideration, whereas they have not been at the forefront of the Italian political elections of March 2018.

Immediately after the refusal, the President of the Republic summoned another renowned economist (Carlo Cottarelli) to try and form a government. Some MPs, including the leader of the Five Star Movement, called for President Mattarella to be impeached under Article 90 of the Italian Constitution, for «high treason or violation of the Constitution».

Here the focus will be on the reasons underlying the President’s decision, particularly no. 1 and 3. Concerning no. 2, a broader point must be kept in mind: Italian public debt is beyond 130% GDP; interests on this staggering amount are the main factor preventing a budget surplus. Therefore, the “spread” is relevant not in itself, but as a reminder and symptom of a chronic weakness in the national economy.

The exact nature of the Presidential office and powers is a classical conundrum in Italian constitutional law. A traditional view is that the President of the Republic enjoys a broad array of discretionary powers, both formal and informal, which he must exercise to guarantee the Constitution and a well-functioning institutional system (see also ECLI:IT:COST:2013:1, particularly §§ 8.2-3). When political bodies act in a coherent and orderly fashion, the President tends to shift towards the background, and vice versa. In a sense, this reflects the flexible nature of the parliamentary form of government: e.g., when the Government and the parliamentary majority are strong, the President mostly recedes to control and containment of single highly controversial decisions; but in 2013, when the Italian Parliament seemed paralyzed, it fell on Giorgio Napolitano (re-elected to the office for the first time in Italian history) to find a way out of the gridlock.

The President’s acts may still be questioned in a conflict of powers (Article 134 of the Italian Constitution), if they unduly infringe on other organs’ constitutional functions. But the procedure for high treason and violation of the Constitution has never been enacted: it has been occasionally discussed; it was started in 1991 and (by the Five Star Movement) in 2014, with all the accusations later archived. It has always been considered a merely theoretical option.

All the President’s acts (with very few exceptions) must be signed by a Minister or the President of the Council of Ministers (Article 89 of the Italian Constitution). This, depending on the type of act and function, may entail either a formal and supervisory role by the President, or a substantive one. The appointment of the Government is a complex act: it should be the confluence of the substantive will of both the President of the Republic, and the relevant political bodies (the parliamentary majority and the prospective President of the Council). No choice can be forced unto the President of the Republic: rightfully did President Mattarella resist encroachments on this.

Indeed, Presidents often refused to appoint certain individuals to certain Ministries, mostly due to personal conditions of those individuals: e.g. President Scalfaro did not appoint Mr. Berlusconi’s own lawyer as Minister of Justice; President Napolitano refused to appoint an acting magistrate to the same office.

The difference, today, is that Mattarella’s opposition finds its grounds not in personal conditions, but in the political opinions of the (refused) appointee and in a certain ambiguity on them by the parliamentary majority (see above).

The decision is open to debate, as it is only natural with discretionary powers. The question, whether the appointment of Prof. Savona really made such a difference, is legitimate. But also the answer, which Sergio Mattarella gave “not with a light heart” (as he acknowledged in his statement), is legitimate: it did not overstep the President’s mark and cannot be considered in any way a violation of the Constitution. Article 1 of the Constitution stipulates that “Sovereignty belongs to the people and is exercised by the people in the forms and within the limits of the Constitution”. Article 92 is one of such “forms”. President Mattarella enacted it bearing in mind that the Italian Constitution accepts “the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations” (Article 11), as well as “the constraints deriving from EU legislation” (Article 117), notwithstanding the balanced budget principle (Article 81).

This does not mean that European obligations are beyond debate, criticism – also fierce – and reform. The balanced budget principle itself could be struck out of the Constitution, in the same way it was introduced in 2012 (constitutional law no. 1 of 2012), in the wake of the Fiscal Compact. But these fundamental issues should be framed in the open, before Italian citizens and the European partners, explaining how the status quo should change, and what to do in the meantime; not advanced surreptitiously, through the appointment of a Minister who declared himself ready to directly challenge, and possibly breach, basic European obligations. The theory of games (which Prof. Savona invoked in a recent statement) is all very well; but, in this case, its compatibility with the principle of sincere cooperation and the logic of a full-fledged democratic deliberation is questionable. The sudden firmness of the Five Star Movement and of the League on the name of Prof. Savona – after much elasticity on other appointments, including to the premiership – was unsettling. Appreciating the risks implicit in such a move was a delicate task, but still within the President’s powers.

What now? The new government is unlikely to find a majority in Parliament; it will probably be a short-term, neutral caretaker, until the new elections, which may take place as soon as next autumn. The impeachment procedure – should it start at all – will end in nothing, although it might stir the electoral propaganda. Indeed, the entrenchment on Prof. Savona and the (euphemistically) far-fetched impeachment proposals signal a sharp increase of the sovereigntist and populist rhetoric. Some speculate that the crisis has been purposefully sought by politicians to increase their own approval ratings in the incoming elections. Undoubtedly, now European issues are bound to come into an open, maybe incensed debate.

The next turning point will be the European Council of June 2018. The intertwining trends of European and Italian politics have been such, that now Italy will hardly be in the position to participate in a strong and decisive fashion. Nonetheless, if the debate has no serious, constructive and – if need be – original outcome, on issues such as “migration” or “jobs, growth and competitiveness” in the Eurozone, the situation will not become easier.

Through a difficult decision of its President, the Italian Republic has renewed its commitment to pluralist constitutional democracy and European political integration. It is now for the EU do to the same.


SUGGESTED CITATION  Tega, Diletta; Massa, Michele: Why the Italian President’s Decision was Legitimate, VerfBlog, 2018/5/28, https://verfassungsblog.de/why-the-italian-presidents-decision-was-legitimate/, DOI: 10.17176/20180529-112915-0.

11 Comments

  1. Steven Verbanck Di 29 Mai 2018 at 09:10 - Reply

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

    • Michele Massa Di 29 Mai 2018 at 10:57 - Reply

      As no appointment was made, no formal act was written down and countersigned. Normally the incoming President of the Council of ministers countersigns the new appointments (including his/her own).

  2. philipp Di 29 Mai 2018 at 12:18 - Reply

    Interesting article with helpfull links, although the mix of legal and political/moral arguments is a bit disturbing from a German public lawyer’s perspective: Shouldn’t you at least allow for the possibility of a legal act by the President that is nevertheless morally/politically illegitimate?

    For the purposes of this blog, I would find it most helpfull to read some more substance on the dimension of legality (and leave the question of legitimacy to other blogs): If Article 92 is the only relevant clause of the Constitution in this case or at least the most important one, then what does it say, how exactly has it been interpreted in jurisprudence and is there any relevant case law?

    I assume there to be some more or less generally accepted limits to the President’s discretion – for example because he nominates Ministers „on the proposal“ of the President of the Council of Ministers.

    • Philipp Di 29 Mai 2018 at 12:52 - Reply

      Thanks for the article.
      Offical version of the italian constitution in german (version for alto adige; http://www.landtag-bz.org/download/Verfassung_Italien.pdf) says that the president of the republic appoints the president of the cabinet and due to his (president of the cabinet) proposal the ministers (art. 94 sec. 2). In the wording, there is no possibility for the president of the republic to refuse the proposal (like an „he can appoint..“). I think we have a similar situation in Art. 64 Grundgesetz.
      Maybe you can provide clarification about this point.

      • Michele Massa Di 29 Mai 2018 at 15:54 - Reply

        Thank you for your attention and comments, Philipp. Neither appointments, nor non-appointments under art. 92 have ever been questioned before a court. In current literature and practice, the appointment of a new Government is considered a complex act. Its adoption requires an agreement: i.e. a proposal by the incoming President of the Council of ministers, accepted by the President of the Republic. In this case, Mattarella refused Savona; Conte (the no-longer incoming Premier, backed by the two parties) refused to propose alternative names; so no agreement was reached. Of course, every presidential decision must rely on constitutional grounds, and we tried to explain them, in this case.

        • philipp Di 29 Mai 2018 at 23:48 - Reply

          thanks, it is precisely the „constitutional grounds“ that I (and apparently Philipp with a capital P as well) would be interested in. in both your article and your answer now, you imply that the President may refuse a proposed Minister for basically any reason, which sounds surprising from a comparative perspective. To put it differently: When would a President „overstep“ (your word) his legal competence? What are the relevant criteria?

          • Michele Massa Mi 30 Mai 2018 at 21:03

            Not “for basically any reason”. Distinctions should be made for the various presidential powers, but he is always bound to act for “the cohesion and harmonious functioning of the powers, policies and guarantees comprising the constitutional framework of the Republic” (see the general remarks in the constitutional judgment quoted above, § 8.2). In this case, the problem was that the appointment apparently heralded strong tensions, if not infringements, of constitutional principles (artt. 11, 81, 117), which had not been clearly anticipated in the electoral debate and in the ensuing “contract”.

  3. MartaMoretti Fr 1 Jun 2018 at 23:24 - Reply

    Thanks for the interesting analysis of the Italian President’s Decision to refuse the appointment of Professor Savona as Ministry of Economics and Finance. Although I appreciate it very much, I don’t find this analysis fully persuasive because I don’t agree with the factual assumptions.
    1/ As a matter a fact, if a ‘plan’ is described in documents which have been made available to the public, it is not secret. In addition, this ‘plan’ should be considered a theory, unless it is endorsed in the programme of the Government, and this was not the case. Indeed, Five Stars and Lega, after having realised that none of them could form a government by itself, have signed a “contract” by which they have undertaken to realise the programme summarised therein. This programme does not envisage the withdrawn from the EMU or from the EU. Therefore, none could take for granted that those political parties proposed Professor Savona as Ministry of Economics and Finance because they had secretly planned to withdraw from the EMU or from the EU.
    2/ In addition, none could be sure that the spread and the investors’ concerns would have increased as a consequence of the appointment of Professor Savona as Minister of Economics and Finance. On the other hand, there was the risk that the spread and the investors’ concerns could increase by telling that Five Stars and Lega – which were trying to form a government – had secretly planned to realise the “plan” theorized by Professor Savona.
    3/ In my opinion, the “compromise” which – finally – was reached between the President and Five Stars and Lega (namely, the appointment of Professor Savona as Ministry of European Affairs, rather than as Ministry of Economics and Finance) seems to confirm that the fear of what might mean the participation of Professor Savona in the Five Stars-Lega’s Government was exaggerate.
    Although, without any doubt, under the Italian Constitution, the President is not a public notary, Italy is a parliamentary (and not a presidential) Republic. Therefore, the President’s decision should not be or (even) give the impression to be based on mere hypotheses.

    • Michele Massa Do 7 Jun 2018 at 16:00 - Reply

      Thank you, Marta. Many of your points are a correct complement of what we wrote. Yet, in my opinion, the main concern was, and is, that European issues are discussed openly and seriously, without ambiguities or implicit threats of a “plan B” which may or may not be enacted (by the competent Ministry). So I would reply that the decision was based not on mere hypotheses, but on lingering ambiguities. Of course, the risk of giving the wrong impression is there.

  4. Lorenzo Pavolini Mo 4 Jun 2018 at 18:15 - Reply

    I’m really happy that just few people read this kind of articles: I really wonder what could happen if people not coming from Italy would read the things you write. The President has no constitutional power of veto under article 92, and what he did was a clear abuse of power. Besides, the financial power has no right to influence democracy, and democracy has no right to be influenced by financial power. Though the so called spread was a clear attempt held by the ECB to change the course of democracy, the Italian President tried to stop a government he didn’t like using spread as an excuse. Last but not the least, none of the two political majority parties wanted to leave the european union nor the euro as a currency. And this should be clear especially for the readers from abroad who can be cheated by articles who do not give a complete information about the facts.

    • Michele Massa Do 7 Jun 2018 at 16:16 - Reply

      As we wrote, the two parties did not explicitly endorse Savona’s opinions, but surely insisted on his appointment (with the outcome we all know now) and were, and still are, unclear on how to finance their proposals (that is the critical point of tension with the EU). At any rate, saying that “the President has no constitutional power of veto” and that “what he did was a clear abuse of power”, without further qualifications, is simplistic at the very least. E.g. see the opinions here https://bit.ly/2LxwgqC and here https://bit.ly/2Jrvmex. See also here https://bit.ly/2JzWoDG where Prof. Onida criticizes Mattarella without speaking of “clear abuses of power”. Even Prof. Carlassare here https://bit.ly/2LLyIKT conceded that the President has a veto power, although only on objective and not on political grounds.

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