Part I: Is the institutional crisis in Italy over? Surely a storm, maybe indicating a climate change

Giovanni Piccirilli

Law Department, LUISS Guido Carli University, Rome

This is part I of a 2-part post. Part II will be published on 8 June

Italy is facing one of the deepest constitutional crisis in its recent history, which did not come out of the blue. And the appointment of the Government led by Giuseppe Conte, eventually occurred on 1 June 2018, does not necessarily represent its conclusion.

The last few days witnessed unprecedented tensions among the institutions whose origins can be traced back to the decade-long adjustments of the system and the progressive fragmentation of political parties, now accompanied by a widespread distrust of (and amongst!) them. Behind the scene is the uneasiness of a vast part of the political spectrum at principles and customs of parliamentary government, with its institutional checks and balances.

The triggering incident was the refusal by the President of the Republic, Sergio Mattarella, to appoint Paolo Savona as Minister of Economy and Finance. For a moment this refusal appeared to be the failure of the Government supported by a post-electoral coalition composed by the “League” (once qualified as “Northern”) and the Five Star Movement, two political parties with quite different platforms that anyway converge on a more than skeptical attitude towards European integration and (quite vague and differentiated) “sovranist” claims. Few days later, the President of the Republic appointed a government with the same Premier and political basis, with a different Minister of Economy and Finance (Giovanni Tria) and Paolo Savona in charge of European Affairs (which is a Department of the Presidency of the Council of Ministers, without a proper Ministry behind).

The evaluation of the triggering episode requires looking into the role of the President of the Republic in the formation of the Government.

Art. 92.2 of the Constitution states: “The President of the Republic appoints the President of the Council of Ministers and, on his/her proposal, the Ministers.” The scholarship is not unanimous on its interpretation. Some emphasize a more proactive role of the Head of State vis-à-vis the designated Head of government; others rather advocate a rubber-stamp role. Nonetheless, in the past the President of the Republic did reject a proposed Minister, or a proposed Minister for a specific portfolio (note that no formal record of these episodes exists, but they became public through reliable reports).

Besides some old instances (first in 1979 and then in 1994, on the occasion of the first government chaired by Silvio Berlusconi), a recent precedent (2014) is worth recalling. President of the Republic Giorgio Napolitano refused to appoint Nicola Gratteri, a popular prosecutor, as Minister of Justice. Napolitano did not decry the candidate’s lack of formal qualifications; Napolitano objected to the opportunity of appointing a serving judge to that Ministry. Be as it may, in all cases of disagreement between the proposing Head of government and the appointing Head of State another candidate had always been proposed and accepted; trial and error had always achieved a positive outcome and defused head-on clashes.

Differently, this time the veto opposed by the President of the Republic to the firm will of the leaders of the coalition (Luigi Di Maio and Matteo Salvini) to appoint Paolo Savona as Minister of Economy and Finance was the confirmation of a dramatic transformation in the political system.

On the evening of Sunday 27 May 2018 the President of the Republic gave a dramatic speech motivating his veto to Paolo Savona (without even mentioning his name) as Minister of Economy and Finance. The speech can be divided into two parts: the first related to the role of the President of the Republic in appointing the Government, and the second accounted for the motivation behind the veto to Savona.

In the first part, Mattarella clarified that he was not amenable to accept a ready-made list of Ministers that he took issue with, especially after having fostered every possible effort to give rise to a Government. This approach is, in my view, correct.

In the light of the uncertain results of the elections and the lack of agreement among political parties, the respective Presidents of the Houses of Parliament had made two “explorative” attempts to form a government. Both attempts failed. Two months after the elections, on 7 May 2018, the President of the Republic sent to the political parties an ultimatum to reach an agreement, lest he would appoint a “neutral” government tasked with the organization of new elections. On that occasion, the League and the Five Star Movement requested a 24-hour extension to attempt a last-minute deal. It then took more than a week to draft a coalition agreement (called “contract”), which the two parties later submitted for (separated) approval to their respective voters. Subsequently, they indicated as President of the Council of Ministers Prof. Giuseppe Conte, a respected academic and legal practitioner, albeit barely known by the larger audience: he had not been a member of, nor candidate for, either party; more generally, he had been essentially off the political radar until a few weeks before, when Di Maio announced his name during the electoral campaign as potential Minister for Public Administration (albeit without submitting his candidature as MP).

During the negotiations for the government agreement, the President of the Republic met repeatedly with both party leaders Salvini and Di Maio, as well as with the designated President of the Council Conte. Mattarella forewarned them that he intended to exercise scrutiny over the list of proposed Ministries.

When Salvini and Di Maio “transmitted” via Prof. Conte the list of the proposed ministers, the President made every possible attempt to have Prof. Savona replaced. He went as far as consulting with the two party leaders on this point, even after they had already designated the Head of government. The party leaders did not accept any possible alternative, and caused Prof. Conte to give up his mandate in the afternoon of Sunday 27 May 2018.

Giovanni Piccirilli is Assistant Professor in Constitutional Law at the Law Department of LUISS Guido Carli University of Rome