Meloni’s referendum defeat has dealt a blow to democracy

Italy’s prime minister, Giorgia Meloni, lost a hard-fought referendum on judicial reform at the weekend. In a narrow contest, 54 per cent rejected her government’s proposed constitutional changes, while 46 per cent backed them.

The ostensible aim of Meloni’s reforms was to make the judiciary more accountable. As it stands, Italian judges and prosecutors overlap, with individuals switching between the two roles. This has led to an all-too-cozy relationship which has long potentially undermined the integrity of the judicial process.

Meloni proposed to separate the career paths of judges and prosecutors, divide the existing High Council of the Judiciary (CSM) into two distinct oversight bodies, and establish a new High Disciplinary Court. The members of the latter would be appointed through sortition, so as to limit the influence of competing factions over appointments.

The deeper intention of Meloni’s reforms was to rein in the power of the judiciary, which has too often been wielded against Italy’s democratically elected politicians.

The judiciary, through the CSM, enjoys an exceptionally high degree of institutional autonomy, compared with court systems in other parts of Europe. In effect, the Italian system resembles a state within a state, with the CSM acting as a law unto itself. As the Financial Times describes it, ‘the CSM is an autonomous, self-governing body’. It ‘handles the selection, postings, promotions and disciplinary proceedings of all Italy’s magistrates, now numbering around 10,000’.

The judiciary’s autonomy has long caused the justice system to malfunction. Insulated from public and political accountability, members of the judiciary have little incentive to carry out their job efficiently. As one account has it: ‘In Italy, resolving contentious civil cases through all three levels of the justice system currently takes an average of 2,217 days – six years and one month.’

Though the judiciary is fiercely committed to protecting its own autonomy, it is more than ready to violate the autonomy of democratically elected representative institutions. It frequently interferes in the process of political decision-making and uses judicial power to target individual politicians. Members of the judiciary often participate in media debates on contentious political issues and are unrestrained in their criticism of public figures they dislike. In some cases, they play a key role, as one report has it, in ‘destroying the reputations of public figures who are ultimately exonerated of any crimes’.

At times, it seems that members of the judiciary have taken it upon themselves to act as the informal opposition to Meloni’s government – especially when it comes to her migration policies.

Last month, a court in Rome awarded €700 in compensation to an Algerian migrant, with more than 20 criminal convictions, who was transferred to an Italian-built repatriation centre in Albania, but was not allowed to inform his family. In another case, a court in Palermo ordered the Italian government to pay €76,000 in compensation to non-governmental organisation Sea-Watch. It claimed the government had unlawfully detained a Sea-Watch ship after it had defied a naval blockade in 2019 to bring ashore rescued migrants. Indeed, Italian courts have been leading the challenge to Meloni’s plans to intercept boats in the Mediterranean and send migrants to holding centres in Albania.

The growth of judicial activism in Italy over recent decades has gone hand in hand with Italians’ loss of faith in the political establishment. The judiciary tends to possess a moral authority that elected politicians lack. In this regard, the impact of the judiciary’s sensational ‘Clean Hands’ investigation during the 1990s cannot be underestimated. The exposure of systemic corruption afflicting party politics, from institutionalised bribery to illegal party financing, helped to destroy the legitimacy of Italy’s political establishment. It also emboldened magistrates to adopt a more activist stance in their dealings with elected politicians. Arguably, it was the memory of the ‘Clean Hands’ episode that motivated Italians to vote against Meloni’s reforms.

Unfortunately, a powerful legal establishment is not immune to corruption itself. This was highlighted during the 2019 Palamara scandal. Luca Palamara, a former president of the National Magistrates Association and former member of the CSM, came under investigation in Perugia over allegations of influence peddling and factional bargaining regarding appointments to key posts in the judiciary. The investigation forced senior CSM figures to resign and prompted a public intervention from Italy’s president, Sergio Mattarella. He said the affair had gravely damaged the prestige and credibility of both the CSM and the judiciary.

The scandal showed that the judiciary’s self-governing machinery was vulnerable to the influence of political factions. It also called into question the legitimacy of the CSM, whose protection of judicial independence, appeared as a cover for insider dealing.

Opponents of Meloni’s reforms claimed that her government was trying to impose a right-ring agenda on the courts. That her attempts to make the judiciary more accountable were really about undermining its independence. But that always missed the point.

At issue in the referendum was the question of who rules – an unelected judiciary or the democratically elected representatives of the Italian people? Unfortunately, the people of Italy have rejected an important opportunity to transform their judiciary into a democratically accountable institution. Hopefully this setback to democracy will prove to be a temporary one.

Frank Furedi is the executive director of the think-tank, MCC-Brussels.