Italy’s Judicial Reform Debate: A History of Separation of Powers Attempts

Italy’s ongoing debate surrounding judicial reform, particularly the separation of powers between prosecutors (pubblico ministero, or PM) and judges, has a long and complex history. Recent discussions, culminating in a referendum, stem from decades of attempts to address concerns about impartiality, influence and the internal dynamics of the Italian judiciary. The core issue revolves around whether to maintain the current system – where judges and prosecutors share a single career path – or to implement a full separation of careers.

Early Proposals and the D’Alema Government

The push for separating the careers of magistrates dates back to at least 1998, with proposals originating from within the center-left political sphere. Massimo D’Alema’s bicameral parliament proposed separating magistrates’ careers, envisioning “two distinct roles, with two different CSMs” (Consiglio Superiore della Magistratura, the self-governing body of the judiciary). Further proposals followed in 2001 from the Ulivo coalition, advocating for a separation of functions and distinct career paths, signed by Piero Fassino and Francesco Rutelli. A constitutional bill under the Prodi government (2006-2008), led by Minister of Justice Clemente Mastella, also proposed career separation, supported by figures like Diesse Fassino and Violante, and Margherita, led by Francesco Rutelli. However, the fall of the Prodi government prevented the law’s approval.

Renzi and the Functional Separation

In 2014, then-Prime Minister Matteo Renzi, through Minister Andrea Orlando, introduced a ban on transitions from prosecutor to judge, declaring it a step towards “functional separation.” Renzi himself stated the need to separate PMs and judges “as in Europe.” Despite this, Renzi’s government also fell before a constitutional law on the matter could be passed. The 2019 Democratic Party (PD) congress saw the approval of a motion, signed by Deborah Serracchiani, reaffirming the need for career separation, with Serracchiani stating that the “unity of the toga” should not be defended as a dogma.

Cartabia Reform and Continued Debate

The PD continued to support reforms aimed at separation. In 2021, the PD supported the Cartabia reform, which strengthened functional separation by allowing only one career move (between PM and judge) during a magistrate’s lifetime, but not within the same region. Enrico Letta, then PD secretary, and Orlando, the minister, both framed this as a step towards full separation, emphasizing the need to “complete it.”

The Draw for CSM Selection and Shifting Positions

Recent debate has focused on the method for selecting members of the CSM. Marco Travaglio, in 2021, suggested introducing a random draw to address a perceived credibility crisis within the judiciary, arguing that it would reduce the influence of organized currents. Nicola Gratteri initially supported this idea, believing a draw would “put an end to the logic of organized currents.” However, Gratteri now leads the opposition to the draw, with Travaglio echoing his current stance. Peter Gomez, director of Il Fatto Quotidiano’s online edition, also supported the draw as a valid option.

Political Alignments and the Current Referendum

The Five Star Movement and Forza Italia initially proposed the draw as a potential solution. The current political landscape sees an alignment between Elly Schlein and Giuseppe Conte opposing the reform, a coalition that some within the center-left seek to challenge. The referendum’s outcome is expected to favor Schlein and Conte. Even as rejection of the law may cause slight damage to the Meloni government, it is predicted to have a more significant negative impact on the Italian justice system.

The Core Dilemma

The central dilemma lies between accepting a flawed law and risking years without any reform, perpetuating a system where prosecutors and judges mutually influence each other’s careers and promotions. Concerns remain about the influence of political associations within the judiciary, with a minority of magistrates (just over 2,000 out of 9,000) dominating the CSM, leaving the majority unrepresented. The disciplinary commission within the CSM has also faced criticism for its handling of cases, including those involving past misconduct.

The question facing voters is whether the potential drawbacks of the current reform are outweighed by the risks of maintaining the status quo.