[Editor’s Note: This is Part III in our symposium on the Italian General Election of March 4, 2018. The Introduction to the symposium is available here and Part II is available here. The symposium is convened by Antonia Baraggia.]
—Alessandro Torre, Full Professor of Constitutional Law, University of Bari “Aldo Moro”, Italy
Despite the fact that the new Italian political changes are deeply affecting social cohesion, and the numerous challenges facing the representative bodies, thus far the legal structure of the 1948 Constitution has not been formally disestablished. However, this might change in the near future. In fact, if we look at the long-standing consequences of the dissolution of traditional parties following the end of the Cold War, the emergence of territorial and populist parties now in power, the fluidization of rightist coalitions and the virtual collapse of the democratic parties on the Left, we can agree that the political dimension of the constitutional machinery has been greatly affected, even damaged. Though the basic rules remain, their actual working is under attack.
The long delay in forming a government, the tiresome confrontation between the President of the Republic and the leaders of the two populist parties, the outrageous reactions against the Presidency by mass detractors on the web, and even the address of a cautious, feeble new premier before the Senate: all these are highly significant tests of a political disruption of the constitutional pact that might reasonably give way to further clashes between the formal fulfillment of constitutional rules, the actual functioning of governance, and the common sense of the country.
The President’s role within the boundaries of the Italian Constitution can be read in a multilevel way. On one side, he is the so-called “head of State”, indicating that his role is basically (or even “highly”) neutral. He is asked to act as the supreme referent of the cohesion of the Republic and to be super partes in every respect. In addition, he is involved in the circuit of the active powers of the State: his role and position in the establishment of a new Government, by appointing the person who will exert the premiership’s burden and will check the list of ministers, provides a remarkable occasion to influence national politics. Clearly the “political” identity of a President can change accordingly to the metamorphosis of the national politics outside the historical walls of the Quirinale. If we want to assess the main stages of the change of the presidential behavior toward the resolution of governmental crisis, it is worth reminding that : a) the traditional standing of former Presidents who allowed and nearly supported the settlement of many “replicant” coalition Executives; b) the non-conformist behavior of Presidents Pertini and Cossiga who favored the reshaping of the republican life by asking the “parliamentarization” of the crisis; and, in recent times, c) the far more direct intervention of President Napolitano (the unique to be re-elected) in the transition toward a single-party Executive and in openly supporting its leader. However, when we say “political”, it is far from being meant that someone acts publicly while working under the influence or command of a named party. Actually, the President is expected to be far from the voice of a strictly “party” politics, and he actually is not. Some former Presidents were indeed suspected of this kind of partisanship, but when in a more advanced stage of the constitutional evolution the role of the highest officers of the State is openly argued (unless by intemperate opposition parties). The President is, or should be, a high-level interpreter of the Italian politics in the broadest and highest sense of the word, and his party links – when any – don’t affect his guidance of the Republic’s business.
If we want to make sense of the President’s multifaceted role in political transitions, it is worthwhile to consider President Mattarella’s vetoing of the appointment of a Eurosceptic finance minister. It is helpful to consider this issue in light of the constitutional conventions that actually work as proper regulations of the behavior of political bodies in the field of public law of the Italian Republic. When the apparent leaders of two successful political parties engaged him in a rather new-style consultation, President Mattarella urged the prevailing policy-makers of the country to dismiss the man who was designated as the new “Presidente del Consiglio”. He openly suggested the appointment of another Head of the Executive and actually showed the political world that the President can lawfully enjoy an active position in the Italian political system. Within this constitutional confrontation, the opinion of some constitutional lawyers (indeed a minority) was against the President’s action, arguing that his enhanced role exceeded the boundaries of his powers. On the other side, the majority opinion of constitutionalists is that the conventional powers of the President were correctly exercised, and that his constitutional behavior was exerted properly.
In addition, we should take into account the basically dual range of rules governing the President’s constitutional role.
We can find, on one hand, the provisions formally codified in the Constitution and strictly fixed; and on the other, the conventional rules about which nothing is written in the Constitution.
The former deliver a list of specific functions while the latter are intended to occur as gap-fillers. In other words, the dual structure of the rules about the formation of a new government are rooted both in a written article of the Constitution (92) that empowers the President to appoint the premier and his Executive, and in unwritten rules concerning the confidential activity of the President in asking opinions, checking political views, etc., under the necessity of giving the country a new and hopefully responsible governance rooted in a safe parliamentary majority.
Though unwritten, or customary, the gap-filler rules are not less important that the formal provisions. The vagueness of the written provisions in art.92 cannot constitutionally work without the support of the far more detailed conventional rules, whose utility lies in connecting the opposite sides designed by a scanty constitutional writing and in showing the way of a correct establishment of the political premiership. In other words, since the Constitution says nothing about the way to connect the crisis of an incumbent government lacking the parliamentary confidence to the establishment of a new Executive supported by a political majority of representatives sitting in both Houses, a barely conventional proceeding under the aegis of high politics is the unique guidance to a transition to a new settlement.
Such merely conventional way to put an end to the crisis and to empower a new Executive was strictly “codified” through behavioral usages so rigidly followed by Presidents and political parties up to being considered as material constitutionalized rules, but something changed over time.
Along many decades the President’s role was mainly a notarial one, and he acted just as an executor of the hegemonic party’s political will. On the other side, all the governmental crises were extra-parliamentary: in other words no votes about confidence occurred, and the dissolution of the Executive was resolved by standing party leaderships. The President acknowledged that and the consultations were basically one-way. Following the end of the so-called “first Republic” and the transition to a new balance of parties made him to become a more active actor in the Government-making. Paving the way to the fall of the traditional mass parties and to the birth of new political groups, the huge electoral reforms envisaged new personal leaderships and, accordingly, the idea of a more apparent constitutional premiership: in such a new context the President’s contribution to the formation of the Government was alternatively minimal and – namely under the Napolitano and Mattarella presidencies – crucial.
The connection between electoral reforms and the evolution of the President’s role might be a challenging field for a reflection on the working of this side of the Italian constitutional system.
Nevertheless, the appeal to the doctrine of constitutional conventions (that the Italian scholar may helpfully draw from the British constitutionalism by A.V. Dicey) might largely explain as well what recently came in the current Italian debate between the Presidency and the political leadership of the country, and “how” it actually happened. A strictly legalistic approach to the constitutional provisions hardly helps to understand how far the President is allowed to find a determinative support in the unwritten rules regulating the consultations. That’s why the interpretation of leading constitutionalists suggests that President Mattarella’s critical touch with the spokesmen of the political competitors didn’t undermine the balance of the parliamentary system of government, its inner wisdom and even the basic features of the Italian democracy.
An open debate is welcome.
Suggested Citation: Alessandro Torre, I-CONnect Symposium–The Aftermath of the Italian General Election of March 4, 2018–Taming the Crisis, Int’l J. Const. L. Blog, August 16, 2018, at: http://www.iconnectblog.com/2018/08/i-connect-symposium-the-aftermath-of-the-italian-general-election-of-march-4-2018-taming-the-crisis