All the President’s Powers

Power is like a liquid, sometimes erupting under pressure to cover all around it, sometimes seeping through cracks to find its own levels. The Italian President has no volcanic properties but when there is a vacuum he can and does fill it.
There has been much talk over the last ten days about Giorgio Napolitano increasing the role and importance of the president. Some say that he is overstepping his constitutional powers, others are grateful for a steady hand in the present storm. Either way, he has been much in evidence.
The recent austerity budget had a rough ride to Parliament; Tremonti wanted it tougher, Berlusconi and most of the cabinet wanted it much softer and threatened to fire Tremonti. The European Commission and the markets wanted some sign of life in Palazzo Chigi. It was at this point apparently, that Napolitano intervened first to make sure that the bill would make it through the cabinet into Parliament and then to ensure that the opposition would not obstruct it wheb it arrived. The result was the fastest budget in history – it was maybe too little, too late; on Monday the response was underwhelming, but since then the markets at least have stabilised. But whatever the mediumterm results, it was a smart piece of manoevering by the Quirinale. Nowhere in the constitution does it give the President budget powers but for a few days at least, he had taken over from the prime minister who was absent both physically and politically throughout.
Then in the middle of the week, he again took the political initiative when he gave the magistrature a severe rap on the knuckles. He told a group of newly appointed magistrates “to avoid conduct which creates undue confusion between roles and encourages the existing intolerable and sterile clash between politics and the magistrature”. For someone who is supposed to be a largely symbolic leader and head of the judiciary, these are strong words.
First of all condotta is stronger and more negatively marked than “conduct” and much more so than “behaviour”. Not so long ago, Italian schoolchildren were marked on “conduct” and there is a whiff of schoolmasterly disapproval behind the word. The phrase also presumes that magistrates are overstepping their roles and moving directly into politics and accepts that there is indeed a clash between “politics” and the judiciary. It is a “when did you stop beating you wife?” statement.
It also takes for granted that “politics” is something apart from the law and the judiciary. At least since Craxi in the Eighties, elected politicians have tried to argue that they are somehow apart from the rest of society with privileges and immunities due. When one of them has been investigated for alleged wrongdoing, they close ranks and defend “politics”. Berlusconi of course has taken this to paroxistic levels but even a magistrate and former speaker of the chamber, Luciano Violante has made the distinction between “legality” and “politics”, a point he repeated last week.
The President is the titular head of the judiciary; the not-so-veiled subtext of his speech was that prosecutors and judges should pull their punches in order to keep the country going. If they continue with their investigations, arrest warrants for parliamentarians, telephone taps, Napolitano implied, then there might be another corruption scandal as in 1992 and in the present economic climate, Italy cannot afford it. Even less than mediating the passage of the budget, the constitution certainly does not give the President the power to instruct judges and prosecutors not to apply the law.
It was a remarkable speech because any investor listening could only presume that there is more rot to be uncovered by investigaters and more institutional instability just below the surface making Italy even more unreliable than it looks.
The more partisan interpretation is that Napolitano was trying to defend his former party comrades some of whom are under investigation. This is unfair as, unfortunately Napolitano has long separated “moral questions” from political ones.
In any case, the following day after widespread criticism, he argued that he had just recommended magistrates not to do anything that might weaken their efforts to guarantee legality especially when dealing with politicians.
Normally Italian presidents, Napolitano included, sail high – well above the day to day scrummage of party politics. They open public works and talk about progress or go to schools and extoll the benefits of education. The only political negotiation that they are involved in is the formation of a new government but they are normally behind closed doors.
This time Napolitano has come out into the open, first to see the budget through Parliament and then to try and damp down the growing public insufferance for the whole political class. It is true that power fills vacuums and that there is a dire lack of leadership in Italy today, but if the decisionmaker of last resort becomes involved in day to day politics, he is likely to lose his prestige without even resolving the issues. And that would leave Italy even more dangerously uncovered and vulnerable to a more violent type of power.


Last blog on the president, 6 Feb. 2011 Of cabbages and kings