The Italian Job: constitutional dilemmas facing the Italian form of government

Massimo Fichera

University of Helsinki

From the outset, the current Italian government (in power since 4 March 2018) has distinguished itself for highly controversial decisions and measures – often with significant constitutional implications for the development of the Italian form of government. What follows is a short account of at least some of the most important issues. As will be seen, in some circumstances new constitutional conventions may be emerging and this should not always be regarded as a positive development. As a matter of fact, during the first year of the Conte government, the degree of constitutional controversy has increased and shows no sign of respite – to the extent that one may begin considering the populist nature of the Italian government as culturally at odds with some of the fundamental values of the Italian Constitution.

The role and powers of the President of the Republic and the Prime Minister

First of all, the so-called “Savona affair” (i.e. the refusal by President Mattarella to appoint prof. Savona as Minister of Economy and Finance, due to his views against the Euro) sparked a debate on the scope and nature of the power of the Italian President of the Republic to appoint government ministers. Much ink has been spilled on this issue, which concerns the interpretation of Article 92 (2) of the Italian Constitution. Here it will only be recalled that, while a number of scholars – from different perspectives – believe that the President should merely accept the list of ministers suggested by the Prime Minister or that, in the specific case, Mattarella should not have vetoed the suggested name (see here, here or here), others (including this writer) argue that, in light of the prevailing constitutional conventions and especially in exceptional circumstances, the discretionary power of the President is larger and the veto was entirely legitimate (see here, here, here, here and here).

Second, a number of important remarks may be made on the extent to which the effective role and powers of the current Prime Minister diverge from the legal framework provided by the Constitution. In particular, Article 95 (1) clarifies that “the President of the Council of Ministers conducts and holds responsibility for the general policy of the government”. Moreover, Articles 95 (2) and Article 5 (2) (b) of Law n. 400/1988 indicate that the Prime Minister promotes and coordinates the activity of the ministers. It is true that, despite the seeming clarity of these provisions, there exists a tension in the configuration of the powers of the Prime Minister vis-á-vis the members of the Cabinet between the norm of collegiality or collective decision making and the norm of prime ministerial authority. This is by no means a new issue. Doubts about the extent of the powers of the Prime Minister were already raised during the preparatory works of the Italian Constituent Assembly.

However, while the matter has not been entirely settled over the years, many commentators tend to prefer the principle of the authority of the Prime Minister (the so-called “monocratic principle”). This is understandable, in light of the above-mentioned provisions and the prevalent practice of Italian governments in the past. As a result, as I have argued elsewhere, the compatibility of the current role of the Prime Minister with the Constitution may be questioned, given that the two Deputy Ministers (Matteo Salvini and Luigi Di Maio, but especially the former) have de facto acquired a prominent role in the Cabinet. Alternatively, one may wonder whether and to what extent this is an abnormal state of affairs or represents a worrying precedent for a new form of constitutional convention.

Third, the very existence of a “contract” binding the coalition is certainly an innovation in the Italian system, although technically it may not be qualified as a legally binding text, but only as a political commitment. Be it as it may, a few doubts may be raised on the compatibility of at least some of its content with the Italian Constitution. For a start, providing a Conciliatory Committee in case of disagreement between the parties seems to go against the role and powers both of the Prime Minister and the President of the Republic. Moreover, the intention to abolish the clause forbidding parliamentary mandate (Article 67 Italian Constitution), while aimed at preventing the all-too-frequent phenomenon of party defection, risks coercing MPs freedom and thus fundamentally altering the nature of the Italian liberal democracy – unless other provisions exist to guarantee such freedom, in conjunction with the principle that each MP represents the whole nation, and not only the small portion of electorate that voted for him or her. In this light, Article 21 (5) of the Statute of the Five-Star Movement, which imposes a fee of 100.000 euro in case of expulsion or defection of an MP due to disagreement with the party, is clearly in breach of the Italian Constitution.

The relationship between government and Parliament and the “Diciotti affair”

Fourth, another anomaly can be detected as regards the relationship between government and Parliament. For the first time in the history of the Italian Republic, a budget law has been rammed through Parliament without allowing MPs enough time to discuss the details. Under Article 72 (1) of the Constitution, Parliament as a whole (as well as its special Committees in a preliminary stage) must examine each bill submitted by government "article by article", and this procedure must be followed for any legislation dealing with the national budget. Instead, a confidence vote was asked by the government, with MPs facing the stark choice between passing the bill and a provisional budget. Although a minority group of 37 MPs belonging to the upper House appealed to the Italian Constitutional Court and claimed the existence of a conflict of powers, the appeal was judged inadmissible (ordinanza n. 17/2019). The Court rejected the parliamentary group’s claims, because in this specific case it considered that the violation of the MPs’ constitutional prerogatives is not manifest. In other words, the Court did not deny that an anomaly occurred, and that future analogous cases might be constitutionally sanctioned – although it failed to clarify exactly which cases. In particular, it did not deny that, at least in theory, individual MPs might appeal to the Court (by virtue of their role as representatives of the Nation, pace Article 67 of the Constitution).

Viewed from a systemic perspective, it may strike as an oddity that locus standi is conferred on individual MPs, instead of protecting minority groups as such against abuse by the majority. As a matter of fact, while the expedited procedure was judged necessary by the government, due to the lengthy negotiations between the Italian government and the European Commission, this represents a dangerous precedent in the interplay between government and Parliament, as well as between majority and opposition. It also confirms an attitude of deference of the Italian Constitutional Court vis-á-vis the legislative power as expressed by the parliamentary majority.

Last, but not least, the conduct of Matteo Salvini, as Interior Minister and Deputy Prime Minister, who on several occasions decided to shut ports to migrant rescue ships, may also be questioned legally. The debate has recently focused on the so-called “Diciotti affair”, concerning an Italian military ship, on board of which 177 migrants rescued by the Italian Coast Guard were transferred. As I observed earlier on, the Minister’s refusal to open the port of Catania (Sicily) to the ship, with the result of limiting the migrants’ freedom of movement for five days, represents a violation of a number of national and international provisions. In fact, at a later stage the Tribunal of Ministers of Catania, despite the request to close the case by the competent Prosecutor’s Office in Palermo, asked the Italian Parliament for an authorization to prosecute Mr. Salvini for kidnapping offences. The question here is not whether or not the act was committed, as Salvini himself admits to it. Rather, the question is whether such act, whose reason was the Minister’s declared intention to force the EU to agree on a new policy towards migrants, is justifiable and reviewable by the judiciary. The Catania Tribunal’s Order, issued in December 2018, claims that it is a reviewable act, on account of being not a mere “political act”, but rather an “administrative act based on political considerations”. As a result, in line with the principle of legality and the respect of fundamental rights guaranteed by the Constitution, the act ought to be in principle reviewed by the competent judicial authority.

Nevertheless, recently the Italian Parliament's special committee in the upper House rejected the authorization to prosecute Salvini, because the Minister was considered to have acted in order to pursue a prominent public interest, as provided for by Article 9 (3) Legge Costituzionale 1/1989. This decision, which should be confirmed by Parliament soon, is highly debatable, also in light of the fact that the vote by the MPs of one of the coalition parties, the Five-Star Movement, seems to have been tied up to an on-line poll arranged by Piattaforma Rousseau, a private organization belonging to the founder of the party. Although the voting process was marred by technical problems and the questions were considered misleading by many commentators, the outcome was decided by 59% of registered members voting to allow Salvini to keep his immunity. It is regrettable and rather odd to let less than 1% of eligible voters influence such an important decision. The Tribunal of Ministers of Catania will soon decide whether the Prime Minister himself, as well as two other ministers, who have admitted fault to the authorities, ought to be prosecuted, too. Constitutional controversy will undoubtedly continue.

Massimo Fichera is Professor in EU law, Academy of Finland Research Fellow, Faculty of Law, University of Helsinki

Suggested citation:  Massimo Fichera, ‘The Italian Job: constitutional dilemmas facing the Italian form of government’ IACL-AIDC Blog (18 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/18/the-italian-job-constitutional-dilemmas-facing-the-italian-form-of-government