At the next referendum one can vote Yes or No, whatever one believes, but the fact that there is an ongoing campaign to cut the judiciary’s nails is a matter of fact, it is enough to listen every day to the declarations against this or that magistrate for one judicial case or another, above all from the political power.
It is something so evident and worrying, to the point that the President of the Republic Sergio Mattarella had to intervene to ask for respect from all the institutions for the Superior Council of the Judiciary, the institution of the State that he presides over. Yet, who knows why, we are certain that between now and 22 and 23 March, the days in which the referendum on the Nordio reform of the judicial order will be held, the attacks will continue.
In fact, there is evident resentment towards the judiciary, defined by some as an even irresponsible power. The Nordio reform of the judicial system would essentially aim to put things right. And at issue here is the issue of maintaining or not the independence of the judiciary. On this point, Yes and No give diametrically opposed opinions. Everyone agrees that the Nordio reform, however, has no impact on the timing and efficiency of the processes – which is what citizens are interested in – even those who wrote the law. Nothing changes with the reform.
Anyone who had the opportunity to attend the very crowded debate promoted by the Ravenna Bar Association on the referendum question between four members of the legal profession, two on the No side and two on the Yes side, on Wednesday 18 February at the very crowded Sala Ragazzini in Largo Firenze in Ravenna, cannot fail to have noticed these two things clearly.
To the accusations by the No group of wanting to weaken the judiciary with the reform and subject it to political power, the Yes group has in fact responded by stating that in the last thirty years the Italian judiciary has exceeded or exceeded its powers, has accused everyone, has even brought down governments, and has become the most powerful power of all, a power that is, in fact, irresponsible. From here to the request to limit its role and divide it, it is a short step. Instead, there was no talk at all about the duration of trials, rules, procedures, structures and what would be needed to make the justice machine work better, because the Nordio reform did not deal with this.
But let’s get to the news of the evening. The lawyers Andrea Maestri and Andrea Valentinotti spoke for the No vote. For Yes, lawyers Ermanno Cicognani and Lorenzo Valgimigli.
THE REASONS FOR NO: MASTERS
Maestri explained that the Nordio reform heavily affects the balance of the constitutional system desired by the founding fathers. In fact, several articles of the charter are modified. According to Maestri, Yes gives a minimalist vision of the reform, which instead risks causing an earthquake in the balance of power.
The former deputy also contests the way in which the reform was achieved, desired and imposed by the Meloni government on its parliamentary majority without a broad debate and without the involvement of minorities, while the constitutional charter had been written together by different forces.
Maestri denounced the fact that the division of magistrates’ careers is implemented with a change to the Constitution, while if you wanted to do just this you could do it without touching the paper. In reality, according to the No lawyer, they want to divide the judiciary into two sections to weaken it and subjugate it to political power, according to the Latin motto divide et impera. A body and an independent power of the State are divided in order to put our hat on it.
THE REASONS FOR YES: CICOGNANI
The lawyer Ermanno Cicognani started from afar, quoting Giacomo Matteotti from 1911 who spoke of dutifully separating careers and functions in the judiciary. Conversely, he cited Dino Grandi who in 1941 based the foundation of the fascist state on the union of careers. Then he arrived at Pietro Nenni of 1964 according to which the judiciary was an uncontrollable power.
Finally here is Giuliano Vassalli who reformed the penal code and made it possible to have a fair trial, with equality between the parties, the prosecution and the defence, in front of a third judge, equidistant and impartial with respect to the two parties. Cicognani then recalled that in Western democracies there is a division of careers almost everywhere, while the judiciary is unique only in authoritarian regimes.
The Yes lawyer contested the assumption that there is an attack on the Constitution because it is nowhere written that the magistrate will lose his independence. Instead, he insisted on the fact that there is a vulnerability in the trial since judges and prosecutors are part of the same family and this can put the defense in an inferior position compared to the prosecution.
THE REASONS FOR NO: VALENTINOTTI
The lawyer Andrea Valentinotti contested how Cicognani gave the paternity of the single career to too many people and in a casual way, because in 1941 Mussolini was in power and the judiciary was subservient to the regime regardless of careers.
He underlined that in other countries there are different systems with different checks and balances. Here they want to impose a system imported from outside as was done for the electoral system in the 90s: according to Valentinotti, having imported the American system has destroyed the parties and the new system is certainly no better than the previous one. So you have to be careful about copying others.
The No lawyer said that the contamination between the judge and the prosecutor is good, not bad, because today the prosecutor can also ask for the acquittal of a person on trial if he sees that the evidence against him is not there. If, however, he becomes the prosecuting lawyer, he risks turning into a magistrate who only wants to ask for convictions and this hurts especially the poor people who don’t have enough money to afford a good lawyer. Valentinotti is against double standard justice: with all the guarantees for the rich, with fewer guarantees for the poor.
THE REASONS FOR YES: VALGIMIGLI
Lawyer Lorenzo Valgimigli insisted on the validity of due process which must be completed with the division of careers. He insisted that the judge must be third and that there must be equal standing between the prosecution and the defence. According to Valgimigli, however, the judge cannot be equidistant from the two parties as long as he is part of the same family as the PM within the judiciary, i.e. the investigating judiciary and the judging judiciary represented by the same body, the CSM.
In a normal country careers must be separated, but so far this has not been possible in Italy because Italy is not a normal country. He attacked the power of the judiciary which according to him is the most powerful power, more than the executive and the legislative, because if a judge does not want to apply a law it is difficult to see it applied.
Then, speaking of the doctrine of law, the Yes lawyer stated that in Italy the judiciary has always been against due process, the accusatory system and the division of careers, because ultimately the magistrates have always remained tied to the canonical inquisitorial process.
THE REASONS FOR NO: MASTERS
In the second speech, Maestri recalled that from one the governing bodies of the judiciary become three, and they make three on purpose to jam the system. For him it is an artificial construction that hides the real objective, namely the primacy of political power over other powers, a maneuver that goes hand in hand with other proposals in the field such as that of the premiership.
In short, for the No lawyer the aim is to attack the independence of the judiciary, a value that must be absolutely preserved. Maestri also attacked the instrument of drawing lots to give representation to magistrates and said he feared, or rather was terrified of, Minister Nordio’s implementing laws.
THE REASONS FOR YES: CICOGNANI
Lawyer Cicognani said that there is no intrusion of politics into the world of justice, if anything in the last thirty years the country has been held in check by the judiciary which has put the whole world under investigation and brought down governments, with proceedings that almost always ended in nothing.
He cited that a well-known PM failed to even send the former King of the House of Savoy to trial. The Yes lawyer reiterated that the Nordio reform does not affect the independence of the Italian judiciary at all, while on the draw he stated that actually better could have been done.
THE REASONS FOR NO: VALENTINOTTI
Andrea Valentinotti recalled the campaign of attack and denigration that has been conducted against the judiciary over the last thirty years, because if you want to make history you have to make it all, he said in controversy with Cicognani.
The No lawyer then recalled that in fact today in 50% of cases the judge finds the PM wrong and the trials end with acquittal, therefore the impartiality of the judge who is not subordinate to the PM already exists. Furthermore, he reiterated that the drawing by lot undermines the prestige of the judiciary and therefore weakens and intimidates it, as if the magistrates were the only ones not worthy of electing their own representatives.
THE REASONS FOR YES: VALGIMIGLI
Finally, in his last speech, Lorenzo Valgimigli, to contest the reasons for the No, recalled that even in classical Athens the magistrates were drawn by lot, to prevent them from being influenced. He attacked the No vote on the independence of magistrates, which instead becomes irresponsibility according to him, that is, today magistrates are irresponsible and therefore they must be held accountable for the power they exercise.
Finally he reiterated that if the judge is third, equidistant and impartial, it makes no sense for there to be a PM with the sensitivity of the judge. The prosecution and defense must be on the same level and therefore the careers of magistrates must be divided.
