“It took me a while to decide to shoot this video in which I explain the reasons why I will vote no”. Thus begins the intervention with which Alessandro Barbero publicly explains the reasons for his vote no to the referendum on the separation of careers. There are 4 and a half minutes of video, sent by the historian to the “Civil Society for the No” Committee, led by John Bacheletwho published it on his Youtube channel. Barbero lists the reasons that pushed him to take sides against the minister’s reform Carlo Nordio. It starts from one element: “The referendum is not on separation of careers between prosecutors and judges. The de facto separation already exists. Already now the magistrate who takes office decides which of the two roles to work in and can only change once in his life and very few do so”, explains the historian, referring to the fact that today the role changes between prosecutors and judges occur with percentages similar to telephone area codes (In 2023, 8 out of 6,665 judges, 0.12%, became prosecutors. Twenty-six out of 2,186 prosecutors, 1.19%, became judges).
And in fact the heart of the matter, says the professor, is something else. At the center of the reform “is the destruction of the Superior Council of the judiciary, as desired by the Constituent Assembly. So let’s explain: the CSM is the self-governing body of the magistrates with disciplinary functions too, that is, it does something that previously under the fascist regime the Minister of Justice. So, it was the government, that is, the politicswho monitored the judiciary and sanctioned it if necessary”. With his unmistakable tone, made famous by hundreds of historical podcast episodes, Barbero improvises a constituent history lesson: “The founding fathers saw very well that the separation of powers is an indispensable guarantee of democracythat the citizen is not sure if he finds himself in front of investigators and judges who they take orders from the government and who can be punished by the government. For this reason the Constitution provides that the CSM is made up of two thirds of ordinary magistrates elected by their colleagues and one third of law professors and highly experienced lawyers, the so-called lay members elected by Parliament”. The CSM, therefore, “is the guarantee that the judiciary will indeed be in contact with the political power, will listen to the reasons of the government, but she will be free in her choiceshe will not have to obey orders.”
If the Yes vote passes, warns Barbero, the reform will weaken the CSM with the risk of an authoritarian drift. “First of all, because it provides for it to be split, one for the judges and one for the prosecutors, and that above the CSM there is another separate disciplinary body, also made up of representatives of the magistrates and members of political appointment. But above all, the reform provides that in all these bodies the professional members, i.e. those who represent the magistrates and who until now were elected by their colleagues, are drawn by lot. The justification for this crazy size which is not used in any body of great responsibility, is that the judiciary is politicised, which is considered horrible, and that when the judiciary votes it elects the representatives of its different currents and we would like to avoid this”. The real issue, therefore, is represented by the hybrid draw: pure for the professional members of the CSM, i.e. the representatives of the magistrates, tempered for the lay people, the political exponents, who will be drawn on the basis of a list compiled by Parliament. Except that the numerical strength of this list has not yet been specified, which may be slightly higher (or even identical) to the number of positions to be filled. In fact, therefore, politics – unlike the judiciary – will continue to choose its representatives in the Superior Council in some way. Therefore we will have two CSM “where the magistrate members are drawn by lot while the government continues to choose those it appoints“, summarizes Barbero. “It seems to me that these organisms will inevitably be organisms where the weight of the political component it will be much superior. Where in fact the government will be able to give again, as in an authoritarian state orders to magistrates and threaten them with sanctions. Now, of course, those who are in favor of the reform can very well say, as many in fact say, that this is fine. This is exactly what we want. A modern and efficient state must function like this. I think differently and This is why I will vote no. And in the end I decided that it might make sense for me to try to explain publicly the reasons why I will do so.”
