UK Constitutional Law Association

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Panagiotis Doudonis: Constitutional Conventions and the Italian President

The great political and constitutional turmoil caused by the President of the Italian Republic’s choice to veto the appointment of a Eurosceptic finance minister, and subsequently to appoint Carlo Cottarelli as designated Prime Minister to lead a technocrat caretaker government, brings out the importance of conventional regulation for continental European countries. The Head of State plays an enhanced role in the Italian political system, which is characterized by frequent changes in government, a norm that has been verified and augmented during the crisis years. It seems, though, that current developments suggest that the President has reached the outer limits of the powers conferred to him by a mixture of vague constitutional provisions and conventional rules.

The discussion regarding the existence of conventions outside the UK constitutional edifice seems nowadays to be settled. Although Freeman formulated conventions as part of the British constitutional ‘peculiarity’, Dicey himself was the first to point out the existence of conventions in systems characterized by the dominance of a codified constitutional text. Famously, he used as an example the United States’ electoral college and the (then) conventional prohibition of a third presidential term. In continental European scholarship, as in US academia, things have been quite different though. In the majority of jurisdictions, conventions and their role remain under-researched. The first problem arises from the fact that conventions are, according to the classic Diceyan perception, non-justiciable. It creates some discomfort for continental lawyers to accept the existence of political, namely non-legal constitutional rules. Furthermore, the role conventions can play within continental constitutional edifices should be viewed side by side with the constitutional text. Conventions often fill gaps or specify provisions which are characterized by their vagueness.

This is the case with the Italian Constitution’s regulation of the formation of government. The relevant constitutional provision, Article 92 provides that:

‘The Government of the Republic is made up of the President of the Council (‘Presidente del Consiglio’) and the Ministers who together form the Council of Ministers (‘Consiglio dei Ministri’). The President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers.’.

This is a notoriously brief article, compared for example to the corresponding Greek provision, being more than 8 times longer. This brevity of the constitutional text naturally leaves a lot of space for the emergence of practices, some of which have acquired with time normative content.

The economic crisis in the Eurozone and markets’ reactions to it have caused many changes to Member States’ political systems, many of which are of particular constitutional significance. The resignation of the Berlusconi government in November 2011, attributed to market and EU pressures, as well as the appointment of the Monti government was such a moment of political turmoil. What it verified or even expanded from a constitutional point of view, is the enhanced role of the President of the Republic in the formation of government and the appointment of Prime Minister in times of crisis. The 2011 consultations between political actors lasted only one day and had a clear aim: the confirmation of the appointment of the President’s choice, Mario Monti, to the office of Prime Minister.

This precedent from times of economic crisis proves that the President of the Italian Republic has a decisive role to play in the formation of governments, having a specific purpose: the return of the Italian economy to fiscal normalcy, responding to a situation of economic emergency that could pose a harsh effect on the viability of the Italian economy. Lorenzo Cuocolo, in his article ‘Constitutional Conventions and the Economic Crisis: The Italian Paradigm’ presents these developments as a form of constitutional turmoil, trying to bridge the Italian experience with British theory regarding conventions. Nevertheless, he considers that this ‘presidentialisation’ of the government may be justified by the ‘extreme context’ of economic crisis.

A legalistic perception of the constitution could support that this is just a matter of implementing the relevant constitutional provision, which is not viewed as vague but as intentionally leaving great room for manoeuvre to the President. But focusing only on the literal words of Article 92 would translate into giving the President such a wide power as e.g. to refuse the formation of a coalition government comprised of parties who have the ability to secure a majority in Parliament, without even stating any particular reason: just because he may prefer this and the wording of the constitution gives him the legal power to act in this way. The President, in this scenario, could undermine the spirit of parliamentary government itself. This would be like a depiction of Queen’s legal power in Britain that made no mention of its conventional restraints. Thus, it brings out the need for conventional rules to fill the gap created by the vagueness of the relevant brief constitutional provision. A norm should regulate the power given to the President by the constitution; and this is what actually happened gradually during the last 70 years.

It is therefore beyond any doubt that conventions and practices have a tendency to cover the area left unregulated by the vaguely drafted Italian constitutional provision regarding the appointment of government. This happens at a higher rate during times of crisis. The precedent of the appointment of the Monti government brings out clearly the important role reserved by the President of the Italian Republic. Thus, the political developments we witness these days in Italy are not totally unprecedented. As Jennings has clearly pointed out, even a single precedent with a reason and political actors feeling bound by it can give rise to a conventional rule.

Nevertheless, there are a number of ways in which the recent presidential conduct goes beyond this precedent. First, the veto of the proposed finance minister creates unprecedented moments of constitutional tension since it is exercised for reasons relating to personal opinions expressed regarding EMU. It is not just a matter of the President’s hesitation to appoint a particular government. With regard to how such a government is about to be formed and a Prime Minister to be appointed, the Italian constitution seems clear: it is by the advice of the Prime Minister that the ministers are appointed. Accepting a certain person as Prime Minister without accepting his advice for ministerial posts resembles political cherry-picking for the governance of the country. Moreover, appointing a technocrat government with no possibility of having the support of the majority in Parliament is something which equally goes beyond existing precedent, if it is not a “governo ponte” or bridge government, to stay in place until the next (early) general elections.

Does the enhanced role given by convention to the President of the Republic in Italy extend so far as the later developments suggest? Conventions are political rules. This does not entail that they are without normative content or that the constitutional propriety of a political actor’s conduct will not be judged by a political organ. Moreover, conventions are unwritten and emerge through practice and precedent. Such precedents include the appointment of the Monti government. Are we witnessing an emerging, much more extended convention in terms of the President’s power? It is too early to judge, yet the answer is most likely to be ‘no’. These developments will be probably viewed as a circumstantial deviation from standard practice on the formation of government.

Except for the so-called ‘declared’ conventions, which emerge through a more formal and obvious procedure, the existence and content of the vast majority of conventions is brought out by theory and through a retrospective judgement. This means two things: firstly, that some time needs to pass before we can definitively say that there is a convention emerging. This time has not arrived yet. Secondly, there exists an ultimate arbiter for the existence of a new convention: the electorate. Therefore, we should wait for the next Italian elections to make sure whether the electorate uphold or reject the President’s manoeuvres. Predictions can of course be made (I have made mine). But there is no other way for an academic scholar, especially when he is not involved in the political arena, than ‘wait and see’. This would be a critical moment for the Italian President of the Republic’s enhanced powers: if they are effectively turned down by the electorate, then an idiosyncratic ‘Italian’ approach to his role which has ensured stability and avoidance of trouble will have come to an end.

Panagiotis Doudonis is Lecturer and DPhil Candidate in Law at Oriel College, Oxford. Member of the Board, ‘e-kyklos’ think tank in Athens, Greece.

(Suggested citation: P. Doudonis, ‘Constitutional Conventions and the Italian President’, U.K. Const. L. Blog (30th May 2018) (available at https://ukconstitutionallaw.org/))

6 comments on “Panagiotis Doudonis: Constitutional Conventions and the Italian President

  1. Leonard Besselink
    May 30, 2018

    This is very interesting. However, I wonder whether one essential element of the quintessentially British notion of ‘convention’ can appropriately be applied to the Italian constitutional context: the fact that in the British understanding something is a convention because it is not ‘law’ in the British sense – because the courts cannot apply it. This typical British way of understanding what ‘law’ is, cannot be found anywhere on the European continent. The point is that the interpretation of Article 92(2) of the Italian Constitution and practice surrounding it, may – at least in principle – be subject to the jurisdiction of the Corte costituzionale, in particular in the manner of a ‘conflict of attribution’ (conflitto di attribuzione) between various state organs (in principle the prime-minister and the president, and – supposing it has the required legal interest – perhaps also one of the houses of parliament (or both of them)). I do not think such a recourse to the Corte costituzionale is without problems, but I do not think that it is certain that it will not be competent at all.

  2. Peter Vlahos
    June 1, 2018

    Mr Doudonis has provided a very clear description of the Italian President’s constitutional position in a fluid parliamentary situation. Article 92 of the Italian Constitution is indeed skeletal in describing the President’s responsibilities in such a situation and does provide him with room to engineer his own political preference from an indecisive electoral outcome.

    Having said this, it would be prudent for him in making known his preference in a government to also be cautious meaning that some reference to parliament would shield his office from any accusations of political preference or partisanship.

    But where a Constitution is silent anything may be observed as ‘constitutional’….

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This entry was posted on May 30, 2018 by in Comparative law, Europe, Italy and tagged .
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