A constitutional review is underway in Italy – and has already received a positive vote in the Senate – with an impact on the area of Justice, in particular on the government and the careers of the judiciary, in implementation of Meloni’s program. “The people want justice reform”she says.
In these areas, we always look closely at what organizations of the most diverse relevance advocate, but we pay little attention to what happens in European democracies. We often come across a marked lack of knowledge, and even lack of interest, about how things are going on – or the changes taking place – in Spain, France, Italy, Germany, the United Kingdom… when, from different angles, there are plenty of reasons to pay attention.
In the case of Italy there are even special reasons. Taking inspiration from the Italian constitution, there were those who defended, in our Constituent Assembly, the consecration of the autonomy of the Public Ministry. The majority rejected, however, this consecration, against which, in particular, the constituents José Luís Nunes and Sousa Pereira expressed themselves (“We cannot fall into the corporate conception of a Public Prosecutor’s Office” – it was then maintained, with a win). In the original version of our Constitution, the option was “own statute”, “responsibility” and “hierarchical subordination”. It would be the 1982 review that opened the Constitution to “a collegial body with members of the MP elected from among themselves” – and autonomy would finally come into play in the 1989 review. Contrary to established legend, the main constitutional features that we maintain today were not “imported” by decision of the constituents, but arrived via the two reviews that took place in the eighties. The project of bringing together the councils of the two judiciaries into one, which at the time would have formally deepened the “Italianization” of the system, was later thwarted and failed in the 1990s.
What is the aim now in the reform underway in Italy? Firstly, the separation of the careers of judges and prosecutors (until now constitutionally a single career). Instead of a single Superior Council of Judiciary – in which judges and prosecutors participate, in different terms, and is chaired by the PR – there will now be two councils, as is the case among us. But the most relevant points are others. Disciplinary powers will be removed from the councils and entrusted to a High Court for Disciplinary Justice, in which elements from outside the judiciary appointed by Parliament and the PR will also sit (one of which will preside). And the rules for filling bodies are revolutionized with the attribution of a decisive role to the draw, even in the case of names nominated by Parliament.
There are extensive arguments, good and bad, for each of these changes, but it is not their merit that is under examination here. What is significant is that in the Italian experience – which constituted the external referent, practically the only one, in the years in which our model of MP and judiciary government was created – we are now looking, after a rocky path, for this moment of evaluation and choice.
Despite the excesses, failures and mishaps accumulated recently, everything happens between us as if such a moment could be indefinitely postponed. The prevailing inattention will perhaps allow us to believe that the moving postman will not knock on our door again. “And yet it moves…” If the necessary responses are delayed, in countries like ours the risks and damage to be borne will be aggravated.
Jurist, former minister. Write without applying the new Spelling Agreement