Italian Referendum: Meloni vs. the ‘Red’ Judges

Italians are going to the polls on March 22 and 23, to vote in a referendum on a major judicial reform, championed by Prime Minister Giorgia Meloni ever since she came to power.

At the heart of this constitutional reform lies the introduction of a strict separation of careers between the bench and the prosecution service. It is not a merely technical change: it redefines the balance of power within the Italian state. The Italian Left, unsurprisingly, is mobilising against what it posits is an attack on the rule of law.

This reform is a priority for the Italian PM, who first raised the issue upon taking office in September 2022. It has its origins in a scandal surrounding Judge Luca Palamara that erupted in 2019. A prosecutor in Rome, former president of the National Association of Magistrates and an influential member of the High Council of the Judiciary, whose chats were bugged in a case of ordinary corruption, Palamara turned out to be at the centre of a vast system of judicial co-optation. Among the thousands of messages, one caused a political shockwave: Luca Palamara and his interlocutors discussed the need to colpire Salvini—to strike at Salvini—who was then minister of the interior. For the Italian Right, this proved that magistrates were using their investigative powers as a partisan weapon.

The reform has already been approved by parliament, but not by the two-thirds majority required for its definitive adoption, as stipulated by the Italian constitution. A referendum was therefore deemed necessary. The reform will be adopted if the ‘yes’ vote wins even in the absence of a turnout quorum. 

The ‘yes’ camp comprises the parties forming the right-wing alliance that enabled Giorgia Meloni to come to power: her own party, Fratelli d’Italia, as well as Silvio Berlusconi’s long-standing party, Forza Italia, and Matteo Salvini’s Lega. The ‘no’ camp is that of the left-wing parties: mainly the Partito Democratico and the Movimento 5 Stelle, as well as other smaller parties. The National Association of Magistrates, or ANM (Associazione Nazionale dei Magistrati), which now represents 96% of Italian magistrates, has also called for a ‘no’ vote.

The implications of the debate are technical; for these reasons, the government would have preferred not to resort to a referendum, but it had no choice, given the impossibility of securing a two-thirds majority in parliament. In effect, the referendum largely serves as a popularity test for Meloni’s government, and the polls suggest the ‘yes’ vote is leading by a comfortable margin—even after being slightly eroded recently.

At the heart of the reform lies the principle of enshrining the separation of magistrates’ careers: the giudicanti (judges) and the requirenti (prosecutors). The former adjudicate the cases brought before them, whilst the latter represent society and seek the application of the law. Until now, magistrates graduating from the magistrates’ college could move from one role to the other during their career: the referendum provides that this pathway be abolished, and that magistrates have to make a definitive choice to spend their entire career in one role or the other.

As a corollary to this separation of careers, the text provides for significant changes to the judicial organisation. Currently, Italian magistrates are managed by a single institution, the Consiglio superiore della magistratura (High Council of the Judiciary, CSM), composed of two-thirds of magistrates elected by their peers, and one-third of lawyers and university law professors, elected by Parliament. This council has full authority over promotion, transfer and disciplinary matters. The reform proposes to abolish it and replace it with three new councils. The members of these councils would no longer be elected but selected by lot, thereby putting an end to any system of co-optation among peers.

To put it simply: the reform is about breaking the corporatism of the judiciary—which has traditionally benefited the Left—and thereby strengthening public confidence in the impartiality of the justice system. The left-wing corporatism denounced by the government has direct implications for the policies it intends to pursue, in terms of security for example: all too often, Giorgia Meloni argues, magistrates undermine the work of law enforcement by encouraging a form of judicial laxity.

Alongside her, Meloni can count on influential allies, such as the magistrate Antonio Di Pietro, the investigating judge who made a name for himself in the 1990s during the massive anti-corruption operation Mani Pulite (‘Clean hands’) targeting the Italian political class. He condemns the closed circle that the High Council of the Judiciary has become: “The result is a real division, with the most important decisions now being taken according to political affiliations,” he claims.

On the Left, they see it differently. They criticise the government’s emphasis on career separation—which would affect only a minority of magistrates each year, and which could have been introduced by a simple law, not a constitutional reform. For Meloni’s opponents, the prime minister’s aim is clear: to “bring to heel” the judiciary, which clashes too directly with political power. Within the small world of magistrates, the announced move to a lottery system is viewed very unfavourably: magistrates will be prevented from electing representatives of their choice, and thus from reinforcing their political leanings amongst themselves.

True to form, the Left is crying “fascism”—under Mussolini, magistrates were under the close control of the Ministry of Justice, and the Judicial Council was only established in 1948, precisely to act as a “buffer.” But the panic seems largely unjustified. Article 104 of the Constitution will not be amended; it states that “the judiciary constitutes an autonomous order, independent of any other power.”

Once again, the Left is labelling an attack on its own interests as an attack on the rule of law. It is a safe bet that Italians will renew their confidence in their prime minister—who is set to break the record for longevity at the helm of an Italian government.