The Italian Constitutional Reform: How Renzi is Putting Liberal Democracy at Risk. A Critical Liberal Analysis.

20 Settembre 2016

At home, in the EU and abroad the Italian PM Matteo Renzi was expected to finally deliver the long overdue reforms necessary to set the Italian economy right.

But more than to the much needed economic reforms, Renzi has been primarily committed to constitutional and electoral reforms that will grant him extensive powers in the short term, but will also pave the way for any possible future populist or totalitarian charlatan to take full control of the Italian political system: including the Constitution, all the guarantees of individual freedom and human rights, and all the rules of the democratic game. And that by simply winning a single general election and some regional ones.

A crucial referendum will be held in autumn on the constitutional reform passed by Parliament.

No doubt, reforming the Italian electoral law was essential. The previous one was rushed through Parliament a few weeks before a general election by an outgoing Berlusconi majority, whose defeat was obvious in the polls, only to make it impossible for the successors to get any majority.

But the new electoral law introduced by the Renzi government and already in force prescribes that the list (party or coalition) getting 40% of the votes in a general election would get 55% of the seats in the Chamber of Deputies (and the number does not include the members elected in the regions where linguistic minorities are protected and those representing expatriates – about 20 more seats altogether). If no list gets more than 40% of the votes, a runoff election would take place between the two first and the winner will likewise get 55% of the seats: so that a list getting whatever result in the first ballot (in theory, even smaller than 15% or less, and whatever the turnout in the runoff), would get a percentage of seats in the Chamber that would allow them to pass whatever further major modification of the Constitution, unless a popular referendum is required and the modification rejected by the popular vote.

As far as the reform of the Constitution is concerned, there is very little opposition today in Italy to the idea of outgrowing the present perfect identity of powers of the two Houses of Parliament.

In any case, however scarcely useful the present system may be considered, it must also be stressed that today bills introduced by government take on average less than 250 days to be passed by both chambers. Government decrees are currently converted into law in 42 days on average. But for decades governmental majorities – right wing and left wing – have always been quick to blame the rules and the Constitution for their own lack of political will or weak cohesiveness, and that has become common sense, at home and abroad.

That’s probably why the government was rather successful in lobbying many international and authoritative media, and in convincing them that the constitutional reform is a prerequisite for any much needed economic reform. Some have even drown a parallel between the upcoming constitutional referendum in Italy and the UK “Brexit” referendum. Yet, in the case of the Italian referendum, no economic or foreign policy is concerned. What is at stake is the Italian constitutional system.

Most of all, and opposite to the government claim, it is precisely this constitutional reform that may well pave the way for the most reckless and demagogical future populist ventures.

The fact is that the reform passed by Parliament would make the Senate a puppet in the hands of the majority in the Chamber – i.e. of the government. Yet, this new Senate would retain the same powers it now holds concerning the constitutional guarantees.

The Senate will no longer be elected by citizens, but appointed by politicians: by their parties, through the regional parliaments. Not only these are, in turn, elected with majority electoral systems: hence, no significant representation of political minorities in the Senate, either. What most matters is that this new Senate will not only deal with matters of regional or local interest or concerning the relations between the different levels of government, but with extremely delicate constitutional matters too. And given that the primary goal of local governments will always be that of getting the largest possible share of public resources to spend for patronage purposes, their representatives will always subordinate everything to that goal. Knowing the extremely poor intellectual and ethical standards of the present Italian political class, especially at the local and regional level, the governmental majority will always get whatever they want from such a “counterpart”.

Moreover, as the regional electoral law generates majority political systems with a minimal representation of minorities and opposition, so far, whenever there was a significant shift in the general attitude of electors at national level, that always also produced a radical alignment of regional majorities. Therefore the majority in the new Senate will usually be even easier to reach, and will usually be even much higher, than in the new Chamber of Deputies (however distorted by the electoral bonus the latter will be).

Yet, as mentioned, the most delicate constitutional functions – modifying the Constitution, electing the President of the Republic, electing one third of the judges of the Constitutional Court – will still be carried out by both Houses. As a consequence, paradoxically, also further modifying the Constitution or electing its guardians will perhaps take a little more time, but will be easier for the majority than passing ordinary legislation.

So far, the five constitutional judges elected by Parliament were chosen with qualified majority by senators and deputies meeting together in a national assembly (“Seduta Comune”). Unilateral and ultra-partisan appointments of constitutional judges were rather unlikely, and certainly not the rule. The new Senate will elect two judges separately (very unlikely that the majority and the minority would be equally represented: hence, the governmental majority would easily get two), and the Chamber would elect separately the other three (hence, at best one out of five would not be a mere offspring of the majority).

The President of the Republic, rather than a guarantor and guardian of the Constitution, is also likely to become a fiduciary of the government. As the majority required to impeach the President will be even lower, with the reform, than that required to elect him/her (the majority of MPs including the appointed senators, versus two thirds of MPs in the first ballot, and down to three fifths of the voting MPs including the appointed senators after the seventh ballot, respectively), a future populist or authoritarian parliamentary majority will hold a strong dissuasive power over the guardian of the Constitution, even after his/her election, to prevent an independent and impartial implementation of the constitutional rules.

The President appoints another third of the judges of the Constitutional Court: if the election of the President becomes a matter of political decision for the majority alone, the President – especially a President elected by a possible future populist parliamentary majority – will very likely appoint as constitutional judges other fiduciaries of that majority. As a consequence, the judicial review, carried out by a Constitutional Court for almost two thirds directly or indirectly appointed by the parliamentary majority, will virtually be abolished, thus suppressing what has been so far, somehow or other, the main obstacle to political abuses of constitutional rights and rules.

In fact, probably 9 out of 15 constitutional judges will become “representatives” of the majority, the remaining one of the five elected by Parliament will probably be chosen by the largest opposition, and the other five will continue to be elected, like now, by the highest ranking magistrates.

In this situation, the largest minority in the popular vote – very possibly, sooner or later also a right-wing or left-wing populist or extremist political movement, perhaps led by a new charismatic charlatan (possibly much more dangerous than already experimented by Italy in the last twenty years) – would be very easily able to enforce the most demagogic and reckless decisions in economic and foreign policy even without a clear popular mandate; and would find no more constitutional checks and balances in the near future to hold back any authoritarian move, as it has been the case so far. The very possible outcome will be arbitrary government and, in practice, no more rule of law. For a simple parliamentary majority, legally dismantling liberal democracy will become a real possibility, as it has been in Hungary, or worse.

So far Italy was spared from the worst consequences of the populist surge springing up in many other European countries, just due to the novelty represented by Renzi in the 2014 European elections (he never faced any general national election and had bad results in the local ones last spring), but Renzi’s honeymoon is now over according to the polls and it would be totally reckless to bet that no major danger will arise in the future. But this is obviously Renzi’s bet. He and his followers appear not even to be able to imagine that the new rules will be in the hands of others than Renzi and his party in the next decades. Polls, on the contrary, have been steadily suggesting that, already in the next general elections, the winner with the new rules may very well be Beppe Grillo’s “Five Stars” movement.

And if a relative majority, however small, of Italian electors becomes fed up with the present political offer in the future, a new and even worse populist or authoritarian party would find no legal limits in restricting individual freedom, in discriminating against groups of individuals or in trampling on human rights in the next decades.

In order to better evaluate how close the winner of an ordinary general election will be to becoming the absolute boss of Parliament and Constitution, one has also to take into consideration what has repeatedly happened in the last parliamentary terms, since the collapse of the traditional political system in the early Nineties and the extinction of political parties somehow still linked to well recognizable political cultures. Both the last Berlusconi government and the present Renzi government was/is supported in Parliament by the decisive vote of a group of MPs that estimated to have no chance to get government positions or to be re-elected in the ranks of their original party, and therefore shifted allegiance, soon after being elected, in favour of the winners: that was the case of IR, the “parliamentary group of the Responsible ones” (sic: that was its official denomination) in 2011, and is today the case of the ALA group, led by Denis Verdini, the former secretary general of Berlusconi’s party. ALA was also decisive to help Renzi pass the present constitutional reform.

Last but not least, the constitutional reform was passed by a Parliament elected thanks to an electoral law (introduced during the Berlusconi era) that was declared unconstitutional by the Constitutional Court. Although the Court also stated that the unconstitutionality of the electoral law upon which Parliament was elected “will have no effect on the acts that the Houses will adopt before new elections”, it appears abominable that a parliamentary majority that know they were elected thanks to an unconstitutional electoral law, arrogate the power to transform this way the entire constitutional system.

Renzi’s new electoral law might be declared unconstitutional by the Constitutional Court in the hearing to be held next October (before the referendum on the constitutional reform), or it might even be that Renzi himself decides to modify it before it is ever used, as a consequence of the polls that suggest a victory of the Grillo movement (even this is being discussed at present in Renzi’s party!). Even so, at this point whatever constitutional reform that does not lay down at least the basic principles of the electoral law would reduce the constitutional guarantees to the level of those provided for by the Soviet Constitution of 1936, where all liberties and rights were granted, but “within the (ordinary) law”. In fact, now that the practice has become usual for whatever Italian parliamentary majority to change the electoral law according to the polls – as both Berlusconi and Renzi have done when in power – whatever qualified majority required by the Constitution would be within the reach of whatever relative electoral majority, simply by previously modifying the electoral law – which is in turn, entirely, an ordinary law.

Of course, no one is thinking that the Renzi government and majority actually want to establish an authoritarian regime in Italy today. But, after twenty years of intense civic and political bad upbringing during the Berlusconi era, they themselves – supported by an embarrassing number of Italians – appear simply no longer aware of what they are doing, nor able to assess the possible and likely consequences. And they have grown inconsiderate and arrogant enough to pave the way for any possible future authoritarian venture. Totalitarian populism is threatening all European countries. It is completely reckless to dismantle the entire system of the constitutional checks and balances just to show off how effective and fast a political leader is in reforming – in whatever direction – his country’s institutions. And to divert attention from the lack of economic reforms.

Whoever criticises Renzi’s (as yesterday Berlusconi’s) constitutional proposals is silenced by most of the media and currently accused of being opposed to “reforms”, to whatever reform necessary to put the Italian economy back on its feet! As a consequence, the real nature of these constitutional and electoral “reforms” and the risks involved have not been fully grasped. Neither inside nor outside Italy: former ALDE party president Sir Graham Watson’s preface to my book on Renzi’s constitutional change has been so far one of the very few exceptions. An Italian speaker, he was one of the few abroad able to better assess what is going on.

In political terms, the attitude towards the constitutional change is today revealing of political parties and politicians attitude towards Renzi’s Democratic Party. Until a few weeks ago, Renzi, who has an even bigger appetite for risk than Berlusconi, had strictly linked his personal fate to the result of the constitutional referendum, thus diverting the focus from the actual contents of the reform and transforming the referendum into a plebiscite on his own personality and leadership (that should have sounded extremely sinister to whomever had some knowledge of Italian history in the 20th century). Facing a significant drop in his popularity and very uncertain polls, he is now trying to assume a lower profile in the upcoming referendum campaign.

Yet, all those who think that their future is bound to lead them into Renzi’s party, one way or another, are either active or reluctant supporters of the constitutional change. (And their number unfortunately includes some of those labelling themselves, Berlusconi-wise, as liberals or “popular liberals”. As a consequence of the constitutional and electoral reforms, they are foreseeing a future drastic reduction of the political system to Renzi’s party and two more openly populist oppositions – one radically right-wing and the other either radically leftist or Grillo-like –, with no serious and responsible alternative, and Renzi’s party as the only profitable landing for their political venture).

Many others, who have very vague ideas on the reform and lack the considerable intellectual skills that would be necessary to assess its systemic consequences, will simply vote according to their general political preferences. And there is no doubt that some of the worst rascals now on the Italian political scene are well represented among those opposing the government reform (as well as others on the government side): they simply want Renzi to be defeated. But it is totally irresponsible to vote on a constitutional reform that will shape for decades the future of Italy just on the grounds that one contemns one side more than the other in the present day-by-day political situation, rather than on the grounds of its contents. The friends of Italy in Europe and abroad should be less short-sighted than Italian politicians and intellectually disadvantaged electors.

Finally, in view of the referendum, the entire national media system has been made even more subservient to the political system and especially to the government than before (if possible, even more subservient than during the Berlusconi era). The Renzi government passed a law disempowering Parliament of the appointments of the managers of the state television, now back in the hands of the government alone, as it used to be until the Seventies. As a consequence, the editors in chief of all the public television newscasts who were even slightly critical of the government were replaced. And, in a country were the ownership of the major newspapers and media has always been meant more as a tool to seek political influence on behalf of vested interests than to make profit, all the major daily papers changed their editors in chief – and all in the same direction. One of the (relatively) most critical towards Renzi was Ferruccio De Bortoli, the editor in chief of the leading independent daily paper, Corriere della Sera, and he was sacked months ago. The most pro-Renzi editor of a major daily paper, Mario Calabresi, formerly at La Stampa, was appointed editor of the major left of the centre paper, La Repubblica. And Maurizio Belpietro, the most critical editor of a major right-wing paper, Libero, was fired, too, and replaced by Vittorio Feltri, who is much less critical of Renzi. The Berlusconi media empire – televisions and daily press – nominally in the opposition, is surprisingly indulgent with Renzi, (Il Foglio in particular is openly sympathetic and supportive) as Berlusconi appears finally worn out, ageing, weakened, more than ever focused on his financial interests, and at moments even disenchanted and fed up with politics.

This is not what one would expect to happen in a civilized Western open society. It may be much worse in the near future: if Renzi’s constitutional reform is approved in the upcoming referendum, one should not be surprised if Italy follows the path of Hungary or Poland after the next general elections or later.

September 2016


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