All Needs to Stay As It Is so All Can Change

The terms of office of Italian President Sergio Mattarella and German President Frank-Walter Steinmeier will end within few weeks from one another (3 February, 18 March 2022).

The Italian and German constitutions belong to the same constitutional moment (the post second world war period), they are both marked by the will to repudiate the totalitarian past, and both provide for parliamentary regimes. It is not surprising, therefore, that articles 54-61 GG and articles 83-91 It. Const. outline two presidents who are essentially twins. There are differences, but the general description that the Bundespräsident website offers of the role of the president in the Federal Republic, uses the same words that Italian textbooks use for the president of the Italian Republic: «As head of state, the Federal President is for protocol purposes the most important man in Germany. He is the constitutional organ which represents the Federal Republic of Germany both at home and abroad. In his actions and public appearances, the Federal President makes the state itself – its existence, its legitimacy, its unity – visible. This at the same time involves an integrative role and the control function of upholding the law and the constitution. There is also a political reserve function for times of crisis in the parliamentary system of government» (see www.bundespraesident.de). 

Yet the two countries could not experience the two deadlines more differently. In Germany, where re-election is provided for (on four occasions the president has been re-elected: T. Heuss, H. Lübke, R. von Weizsäcker, H. Köhler), President Steinmeier already made it known at the end of May 2021 that he was prepared for confirmation. His re-election in the first round is certain after the three traffic light coalition parties and the opposition CDU/CSU have already announced they will vote for him.

A collective psychodrama

In Italy, on the other hand, a sort of collective psychodrama has been going on for months, in the course of which everything and anything is being said about every possible aspect of the election of the new president. The international press has also devoted some attention to the matter. This is understandable: if the Italians are so agitated, there must be some reason; and after all, the fate of the third largest economy of the EU, for the relaunch of which substantial common resources have been allocated, concerns all the countries of the Union, and anyone who cares about the stability of the continent.

The reason is simple: that “political reserve function for times of crisis” of which the website of the German president speaks, in Italy has been exercised in the last thirty years with such frequency that it has exalted the role of the President of the Republic well beyond the letter of the Constitution and the expectations of those who wrote it. It is true that the juridical powers of the Italian president are not negligible, nor are those of the German president; and that the Italian president, in addition, presides over the Supreme Council of Defense (where he is made aware by the government of their decisions on the matter) and also over the Superior Council of the Judiciary (which deals with the careers of magistrates). But as in Germany all acts of the Italian president are invalid unless countersigned (art. 89 Const. it.), without exceptions (whereas the Grundgesetz establishes that no countersignature is requested for the federal president to exercise his most significant political powers: appointment and revocation of the chancellor; dissolution of the Bundestag, art. 58 GG).

The point is that in the face of traditional reconstructions of constitutionalist doctrine that for decades have defined the figure of the Italian president as “ambiguous” (“hybridisation of different models”, “a figure with many faces that plays a variable role”, “an enigmatic patchwork of non-homogeneous powers”, “a figure that oscillates between the nature of an organ of guarantee and the nature of an organ of government”, “chameleon”), the last decades have changed the cards on the table: in 1993, President Scalfaro appointed a government led by a non-politician, Bank of Italy Governor Ciampi; in 1995, Scalfaro appointed the first cabinet entirely composed of non-parliamentarians (the Dini government); in 2011, President Napolitano appointed the Monti government (also formed by non-parliamentarians); and finally, a year ago, President Mattarella has appointed a government led by former ECB chairman Mario Draghi chosen without regard to any party indication.

New definitions required

This explains the need to look for new definitions of the presidential figure in Italy and the idea that we are faced with a sort of “guardian” (“Italy’s nanny” in the mocking definition of the “Economist”) which the Italian political-institutional system can no longer do without. Philippe Lauvaux in his “Les grandes démocraties contemporaines” (now with Armel Le Divellec, Paris, Puf, ed. 2015) defines Italy a  “parliamentary regime submitted to presidential remedial”. Others feel  that the recent presidential practice has given rise to a kind of “de facto semi-presidentialism”. As a consequence, politicians, scholars, and citizens are divided among those who believe that this is a pathological evolution to be reversed as soon as possible (but don’t know how), those who believe that it is – on the contrary – an evolution to be legitimized by introducing the direct election of the president, those who believe that it is an evolution that can be overcome only by effectively strengthening the role of the Prime Minister, and finally those who believe that all in all the system in place works because a weak government, to avoid authoritarian risks, is a good thing.

Thus, a political system that for years has not been able to bring forth stable governments and that appears to be in permanent evolution, ends up thinking that much (if not everything) may depend on who will be its guardian. The election of the president is increasingly felt as a decision capable of influencing the destinies of individuals and parties: hence the state of fibrillation on the eve of the election of the new president, which takes place this time one year before the legislative term expires. Therefore, for months there has been talk of nothing else and therefore everyone (opinion leaders included, with rare exceptions) has raised issues and offered assessments rarely disinterested. The parties, for their part, hesitate to reveal their cards and postpone from day to day the agreement that the Constitution suggests, especially if one considers the parliamentary balance of this legislature. Unlike in Germany, a president cannot be elected by a relative majority: a quorum of at least half plus one of the components (2/3 in the first three votes) is required.

Everyone plays it safe

The 1009 persons entitled to vote (951 MPs and 58 regional delegates) can be allocated as follows: right-wing parties (Lega, Forza Italia, Fratelli d’Italia et al.) about 420-425; left-wing parties (Democratic party, Five Stars et al.) about the same; centrist parties about 90; MPs who have abandoned their party (mostly former Five Stars representatives), about 70. Since at least 505 votes are needed, common sense suggests that an agreement, at least among the parties which support the Draghi government, is the only reasonable way. All the more so if one takes into account that COVID could prevent a certain number of voters from casting their ballots (how many? of which parties? today those unable to participate would be 44) as long as the presidents of the two chambers do not allow distant voting (which seems irrational for a college that, as in Germany, does not discuss and is just a polling station).

To date, this is not the case. Everyone plays it safe. Or they propose or allow candidacies made to divide (or gain time), such as that of the former Prime Minister Berlusconi, who fails to truly unify the right, outrages (and pour cause) the other half the country, and can only lead to a tug-of-war. Given the election rules, in fact, the votes could last indefinitely: there have been, in past years, presidents elected only after 23 and 21 polls. This seems unacceptable today (and would revive the proposal for direct election) and could produce unpredictable outcomes. Even if history shows that good and sometimes excellent candidates have been elected with very few votes (Giorgio Napolitano’s first election took place with only 543 votes; Leone’s with 518), the last thing Italy needs right now is a Head of State chosen by a partisan and casual majority.

The entire affair is complicated by the fact that the most authoritative informal candidate, with the sole exception of the outgoing president Mattarella, is the president of the Council of Ministers, Draghi. Paradoxically, the very fact of being a premier of presidential stature above the parties makes him, beyond personal prestige, the perfect candidate. However there are many who wonder whether the country needs him more in his current role (if only for a year or so) than in the presidential one (until 2029). It is a tough choice made more difficult by the consideration that no one can say what would happen to the government once Draghi is elected head of state. Would the parties that today support him loyally support another Prime Minister in the year before the next elections? Perhaps, but this would require that transparent and public understanding of which the political forces have so far shown themselves incapable.

The problem is all here: not in the exercises of some constitutional lawyers on the times and ways of the passage of powers in case of election, for the first time, of a Prime Minister in office (in Italy also the presidency is incompatible with any other office: so Draghi should resign in the hands of his predecessor on the last days of his mandate, and then enter into office to immediately form a new government, a process which entails some legal intricacies).

Therefore it would not be at all surprising if, in order to save the precarious equilibrium established a year ago, a large majority would agree on a re-election of Mattarella, who could hardly say no: even if he has repeatedly said that he considers a re-election inappropriate, declaring himself in favour of amending the constitution to forbid a re-election and to abolish the prohibition of dissolution of Parliament in the last six months of the presidential mandate. With Mattarella, Italy would gain another year of precious stability and good government, in addition to confirming an excellent president.

Sure: stability granted only until the 2023 elections. But until Italy will not have come to terms with its form of government, its political institutions will continue to be always in the balance, always in need of internal and European guardians, always on the verge of periodic nervous breakdowns.