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Palazzo Montecitorio in Rome Photo: Nick Kenrick

A perfect institutional storm is brewing in Italy

  • December 2, 2016

People & Power

Changes to the constitution and the new electoral law in Italy are likely to play into the hands of the government and gag parliamentary opposition.

This Sunday, Italians will be summoned to cast their vote in a referendum on a constitutional reform that has revealed the widening fault-lines in the country. The impetus for constitutional reform came from Italy’s Prime Minister Matteo Renzi and is being heralded by the incumbent government as a way of streamlining decisions and cutting the costs of the state. However, a vast part of civil society considers these arguments as mere bait to win votes. In times of great distrust in the political class and the rise of populist parties across the EU, the government is betting on voters buying into this reform.

The mantra that Renzi’s ministers keep repeating is that the country needs “governability” and that the Italian parliament is currently obstructing the work of the executive branch. In the words of Minister of Justice Andrea Orlando: “In a world where financial markets make decisions in a split second, a government must be able to react quickly and stir direction accordingly.”

Foreign interests

Renzi’s recipe for fixing Italy’s economic problems sounds frighteningly similar to what the American investment bank JPMorgan Chase prescribed for Southern Europe in a 2013 research paper.

The political systems in the periphery [of the Eurozone] were established in the aftermath of dictatorship, and were defined by that experience. Constitutions tend to show a strong socialist influence, reflecting the political strength that left-wing parties gained after the defeat of fascism. Political systems around the periphery typically display several of the following features: weak executives; weak central states relative to regions; constitutional protection of labor rights; consensus building systems which foster political clientelism; and the right to protest if unwelcome changes are made to the political status quo.

The shortcomings of this political legacy have been revealed by the crisis. Countries around the periphery have only been partially successful in producing fiscal and economic reform agendas, with governments constrained by constitutions.

Many voters are worried about the interference of foreign interests into a debate that should pertain to Italian society only. This was expressed in the widespread backlash against the American ambassador to Italy and US President Obama when they expressed their support for the constitutional reform and invited Italians to vote “Yes” to the referendum.

To makes matters worse, Matteo Renzi has transformed this referendum into a plebiscite on his popularity. In fact, he has declared that in the case of defeat in the referendum, he would resign as head of the government. That is to say, voters are being threatened with political instability if they refuse to endorse this bill. Indeed, numerous public intellectuals — such as the philosopher and former Venice mayor Massimo Cacciari — have come forward spurring Italians to vote in favor of the constitutional reform maintaining that if Renzi steps down, it would be impossible for the current parliament to form a new government.

However, according to the latest polls the reform is likely to be rejected by voters. All the other major political parties are opposed to the reform and Renzi — who until recently enjoyed a remarkable popularity among the electorate — has not sought their consensus when drafting the constitutional changes. The result of that was a reading of the reform that was pushed through parliament hastily and with numerous procedural infractions.

As the former President of the Italian Constitutional Court, Gustavo Zagrebelsky, points out in his latest book, the revision of a country’s constitution should be an inclusive exercise in which consensus is built across the political spectrum. After all, the Constitution is not an ordinary law that reflects the policy options of the governing party, but rather it should set the rules for political and social freedom in a pluralist democracy. Political ideas can change over time, but constitutional guarantees should be made to last.

Why vote “No”?

Does voting “No” in the referendum on Renzi’s constitutional reform mean not accepting even in principle any change to the constitution that has been in place since 1948? I don’t think so. I think it means that the Italian people neither want to pass a single judgment on a change so comprehensive to alter about one third of the articles of the constitution, nor that the parliamentary majority that approved this reform is democratically entitled to do so.

As for the first point, the issue is that some of the positive changes to be brought about by the present constitutional reform are mixed with others that many believe cannot be endorsed.

The most contentious change pertains the role of the upper chamber. The Italian parliament is governed by a regime of “perfect bicameralism,” which means that both the lower and the upper chamber have equal powers and that a bill must be approved by both chambers in order to pass. Renzi’s government would now like to take legislative powers away from the upper chamber and transform it into a delegation of regional councils with only an advisory role.

The issue with the transition from bicameralism to unicameralism (which in itself would arguably be a positive change for the functioning of the parliament) rests with the fact that under the new electoral law the composition of the lower chamber will be artificially altered to the benefit of the governing party. Without a counterbalance from the upper chamber, the party that wins the elections would easily be able to pass any law in the lower chamber.

As for the second point — whether the incumbent government is entitled to change the constitution — in 2014 the Italian constitutional court ruled the electoral law with which the present parliament was elected unconstitutional. How can a government that has been elected into office with a law now considered unconstitutional change the constitution itself?

The reason for this ruling of the constitutional court is the abnormal “majority bonus system” contained in the electoral law passed in 2005, which was used for electing the parliament in which Renzi is now prime minister. The majority bonus system gives extra seats to the party that receives the most votes in an election with the aim of ensuring the possibility of forming a stable government. However, the majority bonus of the 2005 electoral law was so disproportionate as to cause — according to the constitutional court — a cleavage between the popular vote and the composition of the parliament.

In its ruling, the constitutional court did not urge new elections right away, but that was only meant to allow parliament to approve a new electoral law and then proceed swiftly to new elections. Instead, two different governments were formed since the handing of the sentence, with the second one — headed by Renzi — even trying to change the constitution. This is what led former president of the constitutional court Zagrebelsky to qualify the agenda of the incumbent government as a “theft of democracy.” Had it not been for the disproportionate majority bonus, Renzi’s party would not have had enough MPs to pass the bill.

Renzi’s new electoral law

The incumbent government approved a new electoral law in 2016 — informally known as “Italicum” — which also incorporates a majority bonus system. The constitutional court will rule on the constitutionality of the new electoral law in December, after the referendum will have taken place. It is widely believed that the court will reject the new electoral law. But what is it exactly about the new electoral law that makes it unconstitutional?

The Italicum assigns a majority bonus to the party that obtains the most votes above the threshold of 40 percent of all the votes casted. In case no party obtains at least 40 percent of the votes, a ballotage takes place between the two parties with the most votes. In either case the ensuing winning party is allotted 54 percent of the seats in the parliament. The remaining parliamentary seats are allocated to the other parties in proportion of the number of votes received. This majority bonus is clearly disproportionate with respect to the objective it is intended to serve: the electoral system should facilitate governability, not ensure it through technical expedients that run against the spirit of democracy.

For example, at the general election in 2013, the first party obtained 25.5 percent and the runner-up obtained 25 percent of the votes. If the electoral system in effect at the time had been the Italicum system, this would have caused the two parties to proceed to the ballotage (as neither cleared the 40 percent threshold). Consequently the winning party would have obtained 54 percent of the parliamentary seats and, in so doing, doubled its representation in parliament compared to the votes that it had obtained in the first round of the elections. This would have caused such a government to be supported by only one quarter of the voters with the other three quarters of the voting population represented by the opposition. Does governability really require such a “rule of the minority”?

Another contentious issue in the new electoral law is the way in which MPs will be selected. Candidates run for election in 100 constituencies with open lists, except for a single candidate chosen by each party who is the first to be elected. In each constituency electors receive a ballot allowing them to vote for a single party and for its head of list candidate (pre-printed on the ballot). Voters are also given the option to express up to two additional preference votes for other candidates of that party, by writing their name next to the party symbol.

Then, depending on the party’s national result, a certain number of candidates for each constituency will be elected MPs. However, about 70 percent of the elected MPs will be the head of list candidates chosen by the parties regardless of voters’ preferences. This kind of electoral mechanism will strengthen the power exerted by the parties on the elected MPs and make it more difficult for them not to follow the party line.

Furthermore, when a party decides to join the electoral race, it will have to declare who, in case of victory, would become prime minister. This goes against the principles of parliamentary democracy, as it is officially parliament that should choose the prime minister and not the voters themselves. The reason for this is that within the course of the five-year fixed parliament term more than one government can be formed without the need for calling new elections.

In fact, if at some point the parliament no longer deems the prime minister fit to head the government, it can pass a motion of no confidence and a new government has to be formed among the incumbent MPs. Under the Italicum, however, in case of a no-confidence motion snap elections should be called. This makes it very unlikely that parliament will ever pass a no confidence-vote, as that would entail new elections and the risk for each MP of not being voted into office again.

A time bomb for democracy

The combination of the new electoral law and the constitutional reform clearly shows that the main priority of Renzi’s government is to shift decision-making power away from parliament and towards the executive. The result is a new institutional configuration with only one man at the helm of the state, much more alike to an “elective autocracy” than to a representative democracy.

In the process, important political decisions will increasingly be taken outside the legislative chambers, and the prime minister will be at the head of a tame majority which is unlikely to ever challenge his or her decisions. All political considerations other than governability will be left aside.

Italian political leaders seem to have forgotten that electoral expedients can indeed silence the voices of dissenting MPs, but not obliterate the social diversity that a composite parliament is supposed to represent. And this increase in the cleavage between society and the state is the real time bomb under Italian politics that the establishment should be weary of.

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Riccardo Mastini

Riccardo Mastini holds a master’s degree in Human Geography from Lund University in Sweden and currently works on sustainable development projects in several countries around the world.

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