The judicial reform referendum of 22 and 23 March: Merit over Propaganda
- Edoardo Pignatti
- Mar 15
- 5 min read
The current debate surrounding this constitutional referendum is, unfortunately, smothering the substantive merits of the issue under a blanket of electoral propaganda that fails to respect our Fundamental Charter. Choosing to vote "Yes" is not an act of loyalty to a government coalition, nor is it a vote against an opposition; on the contrary, it is the expression of a liberal and democratic vision that places citizens' rights at the heart of the State's architecture. As I emphasized in my book "Il Paese delle Occasioni Mancate" (The Country of Missed Opportunities), Italy suffers from a chronic inability to finalize structural reforms due to a fear of change or, worse, the habit of bending major constitutional issues to the political strife of the moment. It is necessary to strongly reaffirm that the Constitution is a heritage infinitely more precious and enduring than any political leader. Those who call for a "No" vote based on the fear that the referendum's defeat might topple the Executive are committing a grave methodological error, prioritizing factional interests over the quality of our institutions.
The core of this reform lies in the structural amendment of Articles 104, 105, and 110 of the Constitution, intervening on pillars that today show evident signs of structural weakness. The separation of judicial and prosecutorial careers is the focal point: it is a safeguard of civilization that finally guarantees the impartiality of the judge (terzietà del giudice), as already envisaged by Article 111 regarding the "equality of arms" in a fair trial. Currently, the osmosis between judges and public prosecutors creates a dangerous cultural and professional proximity that can undermine the impartiality of the adjudicator. It is an evident distortion that the magistrate who decides and the one who accuses share the same career path, the same governing body, and the same internal political dynamics (correnti). Separating these careers simply means ensuring that the defense counsel and the prosecutor stand on a footing of absolute equality before a judge who is truly neutral and untethered from "collegial" ties with the prosecution.
Furthermore, it is essential to debunk the myth (devoid of any legal foundation in the text) that this reform would subject the Public Prosecutor to the Executive branch. There is no provision that undermines the autonomy of the investigating magistracy from the Government. Those who fear such a risk are engaging in a "trial of future intentions," hypothesizing scenarios that would require further and distinct constitutional laws, which I would firmly oppose. The current reform protects the magistrate's independence while introducing a principle of accountability that is nearly non-existent today. Data on disciplinary sanctions is clear: in the face of thousands of reports and proceedings, actual suspensions are negligible. This system of substantial lack of accountability must end to make way for a true meritocracy that protects, first and foremost, those magistrates who work with rigor and without political affiliations.
In this context, the introduction of a random selection process (sorteggio) for the members of the High Council of the Judiciary (CSM) represents the cornerstone for dismantling the power of internal factions, which have become "political parties" within the magistracy. Random selection eliminates the possibility for these factions to condition appointments and careers based on association membership rather than merit. A young magistrate must be free to exercise their function without the moral or professional obligation to join a faction in hopes of career advancement. Restoring technical dignity to the CSM means removing it from factional partitioning and restoring citizen trust in a justice system that responds not to internal power dynamics, but only to the Law and the Constitution. Voting "Yes" means believing that a fairer and more modern Italy is finally possible, moving beyond the paralysis of suspicion to embrace a reform of an authentically liberal nature.
Currently, Art. 104 of the Constitution defines the magistracy as a single order with one High Council of the Judiciary. The reform instead provides for the creation of two distinct bodies: the CSM for the Adjudicating Magistracy and the CSM for the Prosecuting Magistracy. Both councils remain presided over by the President of the Republic and maintain the same proportion between lay members (elected by Parliament) and career members (magistrates). The objective is to establish an organizational separation that prevents prosecutors from governing the careers of judges and vice versa.
Furthermore, the current Art. 105 of the Constitution entrusts the CSM with the management of appointments, assignments, and transfers. The ordinary legislation implementing this article (Law 195/1958) currently provides for the election of career members, a system that has bolstered the weight of internal factions. The reform amends the article by introducing random selection for the choice of career members. This change aims to make council members independent from factional "voting blocs," ensuring that the self-governing body responds exclusively to criteria of professionalism.
Today, disciplinary functions are exercised by a specific section within the CSM, creating an institutional paradox where the body that decides a magistrate's career is the same one tasked with sanctioning them. The reform proposes the establishment of a High Disciplinary Court, a third-party body separate from the two CSMs. It will be composed of magistrates (randomly selected from those with at least twenty years of service) and lay members. This separation guarantees impartial disciplinary judgment, overcoming the ineffectiveness of the current system.
Art. 106 of the Constitution is modified to provide for distinct competitive examinations for entry into the two separate careers. Compared to current regulations (recently modified by the Cartabia Reform, which limits but does not eliminate the transfer between functions), the constitutional revision makes the choice definitive from the start of the professional path. Concurrently, Art. 107 of the Constitution is updated to reaffirm that the Public Prosecutor enjoys all the guarantees of independence inherent to the magistracy, technically debunking any hypothesis of subjection to the Executive.
The current Art. 110 of the Constitution entrusts the Minister of Justice with the organization of services related to justice. The reform maintains this attribution but coordinates it with the new functions of the two CSMs and the High Court. It clearer defines the boundary between the Ministry's administrative management and jurisdictional autonomy, ensuring that the separation of careers does not result in greater political interference, but in greater operational efficiency.
Beyond the merits of the reform, I must emphasize the intrinsic importance of exercising the right to vote. Participating in a constitutional referendum is not only a right but a moral duty toward the Republic. In an era marked by political apathy and disenchantment, reclaiming the power to impact our Fundamental Charter means honoring the principle of popular sovereignty enshrined in art. 1 of our Constitution, which states: "...sovereignty belongs to the people, who exercise it in the forms and within the limits of the Constitution."
To vote is to move beyond the logic of passive delegation and sterile complaint to take responsibility for the destiny of our institutions. No matter how complex the ballot question may appear, informing oneself, analyzing the facts, and going to the polls is the only effective antidote to democratic decline. A healthy democracy does not thrive on shouted slogans or personal animosities, but on the contribution of informed citizens who choose not to delegate the decisions that will shape the country's future. Inviting participation means, ultimately, still believing that Italy can stop being the Country of missed opportunities to finally become a nation where reform is the fruit of a collective, mature, and profoundly free will.
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