The Constitutional Referendum on Judicial Reform

In the referendum taking place on 22 and 23 March, Italian citizens are called to confirm or reject the so-called "constitutional reform of the judiciary" (technically: the constitutional law containing "Provisions on the Judicial System and the Establishment of the Disciplinary High Court”). The reform significantly changes the composition and functions of the self-governing body of the judiciary — the High Council of the Judiciary, or Consiglio Superiore della Magistratura (CSM). 

The reasons that led to the inclusion of the CSM in the Constitution are clearly expressed in a passage from the report to the Constituent Assembly by the so-called Forti Commission, dating back to May 1946: “To ensure the independence of the judiciary, it is necessary to constitutionally establish the separation of judges’ careers from the will of the executive power […]. All measures relating to the status of judges (transfers, promotions, leaves of absence, and so forth) must be taken by bodies created within the judiciary itself, such as the High Council of the Judiciary. Likewise, disciplinary measures fall within the exclusive competence of bodies likewise constituted within the judiciary itself. All the aforementioned bodies should, at least for the majority of their members, be elected by the judges themselves.” In short, if justice is to be administered independently, judges’ careers cannot be decided by the Minister of Justice, the Government, or political power in general, but by a body composed mainly of the judges themselves — the CSM. In its current composition, the CSM is composed of two-thirds judges (professional members) and one-third lawyers and law professors elected by Parliament in joint session (lay members). 

With respect to the structure thus established by the Constitution, the reform essentially intervenes in three directions:

The current CSM would be replaced by two separate CSMs, one for adjudicating magistrates (judges) and the other for prosecuting magistrates (public prosecutors): no longer, therefore, a single CSM for the self-governance of all magistrates, but two CSMs for the self-governance, respectively, of judges and public prosecutors;

The composition of the two CSMs would remain unchanged in its proportions (two-thirds judicial members and one-third lay members); their members would no longer be elected but instead selected by lot;

Disciplinary matters — that is, the adjudication of conduct by magistrates that may undermine the trust that every magistrate must enjoy — would be removed from the two CSMs and entrusted, for both judges and public prosecutors, to a new body, the Disciplinary High Court. The latter would consist of 15 members, including nine chosen from among judges and public prosecutors, also selected by lot.

Supporters of the reform essentially advance two arguments. First, the separation of careers between judges and public prosecutors — who would no longer be “governed” by the same body but by two distinct bodies — would represent a safeguard for citizens in criminal proceedings, because it would eliminate any form of closeness between those who judge (the judge) and those who prosecute (the public prosecutor). In this way, criminal proceedings would truly take place on an equal footing between the defendant and the public prosecutor, before a judge equidistant from both. According to supporters of the reform, this does not occur today, because belonging to the same organizational structure in practice creates a collegial bond between judge and public prosecutor to the detriment of citizens, especially in the preliminary investigation phase. From this perspective, the separation of careers would represent the natural completion of the 1988 reform of the Code of Criminal Procedure: to fully implement the choice of an adversarial model of criminal procedure — based on equality between prosecution and defense before a third and impartial judge — it would be indispensable to clearly separate the career of the judge from that of the public prosecutor. According to its supporters, the reform would introduce the separation of careers without undermining the independence of the judiciary as a whole: the constitutional architecture would not betray its underlying logic (the self-governance of the judiciary), but would adapt it to the separation of careers by creating two distinct bodies for each category.

Second, the rule of “selection by lot” would be the appropriate solution to overcome the degeneration of internal “currents” within the judiciary. According to this view, the election of judicial members of the CSM, instead of selecting the magistrates best suited to carry out the delicate task of self-governance, is now dominated by political and factional logics; consequently, appointments and promotions decided by the CSM would not follow a logic that rewards professional competence, but would instead be the result of power balances and clashes among the various currents. With selection by lot, all this would be eliminated at its root.

Opponents of the reform argue instead that, under the pretext of overcoming an alleged closeness between judge and public prosecutor — which does not reflect reality, especially now that moving from one function to another has been made extremely difficult — the reform would in fact undermine the foundations of the constitutional architecture that has so far guaranteed the independence of the judiciary in Italy. Article 104 of the Constitution, which would continue to state that “the judiciary constitutes an autonomous and independent order from any other power,” would become nothing more than a fig leaf poorly concealing the reality of an overall weakening of the judiciary. The CSM, from being a single body safeguarding judicial independence, would be split into two and deprived of its highly significant disciplinary function, assigned to a third body. Thus, the self-governance of the judiciary would be entrusted to three less authoritative bodies, potentially in conflict with one another, according to a design inspired by the principle of divide et impera, which in the long term would pave the way for executive control over the judiciary. The system of selection by lot would further delegitimize these bodies, ensuring that the two CSMs would not include the most authoritative and widely respected magistrates capable of protecting the judiciary from political pressure, but rather individuals chosen at random and lacking the qualification, authority and legitimacy necessary to perform the extremely delicate task assigned to them.

Among supporters of the “No,” however, there is also a different criticism, which accuses the reform of a kind of unintended consequence. From this perspective, the creation of a separate CSM exclusively for public prosecutors would not weaken their constitutional position but, on the contrary, would turn them into a separate category accountable only to themselves. In the current CSM, the careers of public prosecutors are decided by a body whose judicial members are mostly judges (currently public prosecutors are six out of twenty), which fosters a certain balance in evaluation. Under the reform, public prosecutors would have their own CSM through which they would manage their careers in complete autonomy. The same applies to selection by lot. Different cultural and, in a broad sense, political orientations exist among magistrates and would continue to exist even under this reform. Through election, at least a certain pluralism among these orientations within the CSM is guaranteed; with selection by lot, it is entirely possible that magistrates belonging all, or almost all, to the same current could be drawn. In seeking to “depoliticize” the judiciary, selection by lot could thus paradoxically further strengthen the power of the various factions within the judiciary, which might find themselves, “purely by chance,” heavily overrepresented within the CSM.

In summary, in choosing between “Yes” and “No”, it is this question that must be answered: does the constitutional reform introduce greater safeguards for citizens in criminal proceedings without undermining the balance among powers and the independence of the judiciary? Or, in seeking to separate careers, does it end up jeopardizing the balance among powers and that independence of the judiciary, which — in many other countries, near and far — has come under very strong attack in recent years?

Two considerations remain valid whatever answer each individual — and the Italian people as a whole — will give.

First: institutional architecture is central to ensuring judicial independence and the impartiality of the judge with respect to the parties. But it should not be forgotten that rules are not everything. As the Constitutional Court wrote as far back as 1963, “the independence of the judiciary finds its first and fundamental guarantee in the magistrates’ sense of duty and in their obedience to the moral law inherent in their lofty office, which consists in rendering justice impartially.” A particularly important reminder, especially for those working in the field of education and training.

Second: the constitutional reform on which citizens are voting profoundly affects the institutional framework, but it is not self-sufficient, because many of its aspects will have to be developed by ordinary legislation. To mention just a few: what will be the total number of members of the new CSMs? How many individuals will be eligible for selection by lot, and what qualifications must they possess? If the constitutional reform is confirmed by popular vote, it is desirable that, in regulating these aspects—which may make a decisive difference in the reform’s concrete functioning—the divisive logic inherent in the referendum, and which previously marked the approval of this reform, proposed by the Government and passed through Parliament without any amendments, be set aside. In the implementation phase, space should be given to loyal cooperation between majority and opposition, so that the risks feared for judicial independence may be countered as far as possible.