Caiazza says: “It is possible to separate careers without amending the constitution. Di Pietro at the CSM? Interesting.”

“We are reigniting the battle over the separation of judicial careers, with a few exceptions. The outcome of the referendum suggests finding other solutions without amending the Constitution.” Gian Domenico Caiazza, chair of the Liberal Justice Committee of the Einaudi Foundation, explains this to Il Foglio between speeches at the ‘Stati generali dei garantisti’ – an event organised by Forza Italia in the Sala del Refettorio at Palazzo San Macuto. The criminal lawyer explains that there are ways to achieve this goal: “Consider, for example, the establishment of a separate section within the High Council of the Judiciary, which can largely be achieved through ordinary legislation. But it is also possible to amend the rules governing competitive examinations and training; in my view, it is perfectly feasible to envisage a separate competitive examination for prosecutors and another for judges.” Forza Italia has assured that it will resubmit the citizens’ initiative bill on the separation of careers promoted by the Union of Criminal Chambers, which has already been tabled in Parliament and signed by over 70,000 citizens. “In that case, however, there are amendments to the Constitution involved, such as a relaxation of the mandatory nature of criminal prosecution. Parts of the text will need to be rethought. After all,” says Caiazza, “the referendum result precludes any constitutional amendment to the legal system.” 

Alternative routes to constitutional reform are all still very much up in the air. “It will certainly be discussed in the next parliamentary term by now,” warns the criminal lawyer, who is meanwhile preparing a manifesto setting out the ‘fundamental principles of due process’ to be put forward to the parties during the election campaign (“And let’s see who signs it”). One might well ask why these alternatives were not pursued from the outset, without going through a constitutional reform (and a referendum). “Measures of this kind have a structure and weight that cannot be compared to a constitutional reform, which is the main route: enshrining the principle in the Constitution gives it definitive force,” explains Caiazza. According to him, however, it was a part of the very same reform put to the referendum that scuppered the separation of careers at the ballot box: “Including the issue of random selection – that is, the constitutional amendment regarding the election of members of the High Council of the Judiciary – was a fatal mistake. And it has nothing to do with the separation.” The responsibility for this lies with the political sphere. “It was a decision taken by the government, not by the criminal chambers, and it sparked the judiciary’s uncontrollable opposition, allowing the rumour to spread that the Constitution was being ‘attacked’.” What needed to be done, Caiazza adds, "was, if anything, a dual Higher Council. Had there been no pure random selection, the opposition would probably have been less fierce and less contrived, and it has caused difficulties for part of the ‘Yes’ camp". 

With a reform that has been scrapped, and alternative paths yet to be forged, the next CSM could well turn red. At the election of the judicial members in October, the left-wing factions Magistratura Democratica and Area triumphed, securing 11 out of 20 councillors between them. “This victory will certainly influence the choice of the non-judicial vice-president, who is unlikely to represent a majority party,” observes Caiazza. Meanwhile, the Chamber of Deputies and the Senate have been convened for a joint session on Wednesday 11 November to vote on ten members of the CSM. This issue has sparked internal controversy within the majority, with Forza Italia opposing the candidacy of Antonio Di Pietro – a former public prosecutor and symbol of the ‘Mani Pulite’ operation – whilst Justice Minister Carlo Nordio is backing him: “He was a great magistrate, a true public prosecutor, a true investigator, and he fought hard,” said the Justice Minister. "During the referendum campaign, Mr Di Pietro was truly a tenacious fighter, committed to the ‘Yes’ vote with every fibre of his being," commented Caiazza. "I prefer this side of Antonio Di Pietro, and I believe he prefers it too." Would he be a good fit for the CSM? "It could be an interesting twist."