09.02.2017

In the hands of the courts

The judiciary is playing a significant role in shaping Italian politics, reports Toby Abse

The direction of Italian politics over the last few weeks has been to a very large degree influenced by decisions in the courts. Judicial decisions of a different kind may yet have a further impact, as the year progresses. There have been three different developments which can, to varying degrees, be seen as intersecting in terms of their consequences, even if their causation is quite distinct. Two concern judgements on matters of obvious national importance (electoral law and labour law) by the Consulta (constitutional court), whilst the third relates to the Roman mayor, Virginia Raggi - now at long last subject to a criminal investigation likely to lead to a trial.

It seems best to begin with the Consulta’s decision on January 11 about the legitimacy or otherwise of three referenda proposed by Italy’s largest trade union confederation, the leftwing CGIL, which aimed to overturn Matteo Renzi’s aggressively neoliberal labour laws, and restore some of the rights the organised working class had gained after the Hot Autumn of 1969. It should be emphasised that the CGIL had collected more than 3.3 million signatures for each of their abrogative referenda. This was far more than the 500,000 minimum required and way above the usual additional quota that instigators of referenda often collect to insure themselves against the frequent invalidation of some signatures during the legal validation process - an initial hurdle that the CGIL had no difficulty in overcoming (in contrast to some of the more amateurish referendum enthusiasts in earlier decades).

The Consulta ruled that two of the proposed referenda were acceptable in technical terms, being purely abrogative in nature, but the third, and most important one, concerning the Jobs Act, was to some extent a propositive attempt to create a new law, and therefore unacceptable. The decision to reject this attempt to reinstate and, perhaps unwisely, to extend the famous article 18 of the 1970 workers’ statute, ensuring the automatic reinstatement of any worker sacked “without just cause” was not unanimous. The verdict was passed by eight votes to five (one of the 15 places on the Consulta is currently vacant and another judge is seriously ill). Although the CGIL may have been pushing their luck in trying to extend the protection of workers against arbitrary dismissal to workplaces with more than five employees, rather than the 15 that the 1970 law specified in all sectors apart from agriculture (which did indeed have a lower limit of five), the split amongst the judges was, to some extent at least, along political lines rather than on questions of pure legal interpretation.

The CGIL’s leading opponent on the Consulta was Giuliano Amato, a former prime minister, who in 1993 played a role in destroying the last remnants of the scala mobile (wage indexation), and who first rose to political prominence under the patronage of Bettino Craxi, the corrupt Socialist premier who had led the first assault against the scala mobile in the 1980s. Conversely, the judge who led the pro-CGIL faction on the Consulta was an expert in labour law who had in her youth been a pupil of Gino Giugni, the author of the original workers’ statute in 1970. Quite understandably, she refused to draft the report setting out the reasoning behind the majority verdict on the Jobs’ Act referendum, a task that had been assigned to her before the vote was taken.

It is also worth reminding readers that a previous referendum aimed at extending the protection of article 18 to all workers had been permitted in 2003. On that earlier occasion, Rifondazione Comunista (RC) - the initiators of the referendum - had merely called for the deletion of the lower limit of 15 workers, rather than inserting any new limit, so the question was technically purely abrogative. Given the recourse to this 2003 precedent by the CGIL’s lawyers and its sympathisers on the Consulta, it is one of the ironies of history that in 2003 the CGIL leadership, under general secretary Sergio Cofferati, played a key role in sabotaging the previous attempt at extension by urging abstention in alliance with a broad front of political parties from the far right through to the centre-left, thus depriving RC of a quorum.¹

Although some ultra-left critics of the current CGIL general secretary, Susanna Camusso, have claimed that the CGIL deliberately drafted a question that would be ruled out of order, this seems extremely unlikely. Camusso’s detestation of Matteo Renzi, like her loathing of Mario Monti and his labour minister, Elsa Fornero, in 2011-13, is perfectly genuine, and she wanted to reverse all the working class defeats of the last six years.²

Workers’ conditions

This is evident in her intransigent line on “vouchers”³ - the subject of one of the two permitted referenda. These vouchers are a sort of token worth €10 gross (of which €7.5 go to the worker, and €2.5 are taken in tax and national insurance) to be paid for an hour’s work, supposedly to take various occasional part-time forms of employment - of which gardening might be a good example - out of the black economy. In practice, they have been used on an ever-increasing scale as a way of avoiding giving proper contracts to young and casual workers, including some employees of the municipal administration in Turin under Chiara Appendino of the Movimento Cinque Stelle(M5S - Five Star Movement). Even more blatant scams have occurred on construction sites, since workers can show inspectors a voucher for an hour’s work, whilst working a full day, the remainder for cash in hand. Camusso has taken issue with Partito Democratico (PD) parliamentarians, including some on the ‘left’, who have suggested that such abuses can be avoided by tightening the rules. Undaunted, she has held out for total abolition. Whilst eliminating ‘vouchers’ is not as important as restoring article 18, nonetheless a CGIL victory in a referendum on the issue would be a serious blow against Renzi’s neoliberal agenda, and would revive the prestige of trade unions amongst precariously employed young workers currently drawn towards M5S.⁴

The third issue at stake for the CGIL concerns responsibility for workers’ wages and conditions in the event of subcontracting. At present, the original contractor can escape all liability for any malfeasance by the subcontractor. A worst-case scenario might involve either genuine or fraudulent bankruptcy by the subcontractor. The CGIL proposal would close this loophole and make the initial contractor ultimately responsible. One of the reasons why Renzi and his followers within the PD want an early general election - by June 2017 - is that such a clash in timing between a referendum and a general election has always meant the election takes priority. The CGIL referenda currently scheduled by the Consulta for the period between April 15 and June 15 would be postponed for a year. Whilst this postponement is not as urgent for Renzi as it was a few weeks ago, when a potential CGIL victory in a referendum on the Jobs Act later this year would certainly have put an end to Renzi’s political career, even a second referendum defeat on a lesser issue like ‘vouchers’ would, in the wake of the disastrous December 4 referendum outcome, create very serious problems for the PD leader. Obviously, a referendum campaign centred around the Jobs Act would have represented the best possible chance of shifting the focus of Italian politics from the PD-M5S clash back to fundamental class issues, which would in all probability have revived and, perhaps, unified the shrunken and divided forces of the radical left. However, even a controversy over ‘vouchers’ would put an alternative to both Renzi’s centrist, Blairite neoliberalism and the Ukip-style, rightwing, racist populism of M5S leader Beppe Grillo in a more credible position.

The Consulta’s verdict on the ‘Italicum’, Renzi’s new electoral law for the Chamber of Deputies, on January 25, was less damaging to Renzi than he might have feared: indeed it has reinforced his irrational desire for an early general election. Since the Italicum was designed for a mono-cameral electoral system based on the Chamber of Deputies, it was inevitable that, if Renzi’s constitutional reform (to which the abolition of a directly elected Senate was absolutely crucial) was rejected in the December 4 referendum, the new electoral law would have to be altered in some way. Moreover, since the ballotaggio (second-round run-off ballot) was now more likely to favour M5S than the PD, the judges’ decision that it was unconstitutional because it risked giving a clear majority of seats to a party with a low share of the popular vote in the first round (and perhaps a low share of the potential electorate in the second, when some supporters of parties eliminated in the first round might abstain), was no great disaster from Renzi’s point of view.

The other change made by the judges concerned candidates who managed to get elected in more than one of the 100 constituencies created by theItalicum. The judges did not prohibit these outrageous multiple candidacies, but said that any candidate who was elected in two or more localities could not choose which of the seats he or she could take up. Instead, the judges managed to find a clause in an old law which they could use as a justification for deciding that the seat allocated to the candidate would by chosen by lot. Whilst there was no explicit reference to ancient Athens in the judges’ brief summary, they may well decide to emphasise their classical education in the longer statement to be issued by the end of February.

The controversial majority premium of 55% of the seats to be given to any party gaining 40% or more of the votes was accepted as valid by the judges. This endorsement was because their previous negative judgement against Berlusconi’s electoral law - the ‘Porcellum’ - in 2014 had hinged on the fact that there had been no minimum percentage threshold for such a bonus in the Porcellum, so they could hardly contradict such a recent judicial precedent. Obviously, there is a strong case to be made that the premium is undemocratic, because it prevents an accurate representation of the will of the electorate. However, as things stand, no party is anywhere near the 40% threshold.⁵ Inevitably, there have been rumours of electoral cartels designed to reach the 40% threshold, even if the notion that the PD can simultaneously incorporate in its list, as junior allies, both forces to its right like foreign minister Angelino Alfano and the Nuovo Centro Destra (NCD - New Centre Right,) and forces to its left - rightward-moving former members of Sinistra, Ecologia, Libertà (SEL - Left, Ecology and Freedom) seems impractical.

More sinister rumours of a joint M5S-Lega list have repeatedly surfaced in the mainstream press and, when Roberto Fico, a leading M5S parliamentarian on the ‘orthodox’ wing, wrote, “God preserve us from the Lega”, he was immediately denounced and silenced by Grillo on his sacred blog.⁶

Compatible

Whilst the judges, in their brief official statement, made it clear that their modified version of theItalicum could be applied as it stands, so that there was no judicial black hole in Italian electoral law, it is unlikely that this is what they would advise. Their full reasoning will be published before the end of February.

President Sergio Matarella - a Consulta judge immediately prior to his election as president - has repeatedly emphasised that the current parliament needs to make sure that the electoral laws for the Senate and the Chamber are genuinely compatible. The two separate electoral laws created by the Consulta’s successive judicial modifications - for the Senate in 2014 and for the Chamber in January 2017 - differ substantially. The Chamber has 100 relatively small constituencies, while the Senate has 20 large regional ones. The system for the Chamber awards seats to distinct party lists, whilst that for the Senate allows for electoral coalitions.⁷ The system for the Chamber has a majority premium, whilst the senatorial one does not. The minimum percentage thresholds for individual parties’ representation are much higher in the Senate than the Chamber. One could list other differences, but the general point should be clear. In short, Matarella’s suggestion is well thought-out and completely rational.

Unsurprisingly, all the parties of the populist right - M5S, the Lega and the neo-fascists of the Fratelli d’Italia (FdI) - are demanding elections as soon as possible. Renzi’s defeat in the December 4 referendum places them in a strong position vis-à-vis the PD, and a totally chaotic hung parliament would suit them perfectly, whether or not they all enter into a formal alliance before or after the election.⁸ In theory, the PD is united in proposing a return to the ‘Matarellum’ - the 75% first-past-the-post, 25% proportional system used for the general elections of 1994, 1996 and 2001. Since a greatly weakened Forza Italia, which would be severely penalised by any variant of FPTP, will never accept a return to the Matarellum - even if it gave Silvio Berlusconi two of his three general election victories in years gone by - this is pointless play-acting on Renzi’s part.

The real division in the PD is between, on the one hand, Renzi and his acolytes, who want an early election - preferably on Sunday June 11 - and, on the other hand, the more leftish minority around Pier Luigi Bersani, who oppose this. The minority oppose the lemming-like rush to the electoral cliff for two reasons. Firstly, they are inclined to heed the president’s advice about devising a more considered electoral law, being particularly anxious to stop party leaders from having the right to nominate the lead candidate in each of the 100 lower-house constituencies - a right which Renzi could use to exclude most of the PD minority from the next legislature. Secondly, they calculate that a longer interval before polling would increase their chance of ditching Renzi as party leader and winning back some of the party’s lost voters from abstention or M5S with a more social democratic programme.

Berlusconi is anxious to delay the election, firstly because he still hopes that in the course of 2017 the European Court of Human Rights in Strasbourg will overturn his exclusion from standing for electoral office in Italy, and secondly because he is on increasingly bad terms with theLega and the FdI, and would like time to persuade the PD of the merits of a German-style Grand Coalition against M5S (and secondarily against theLega and the FdI).

The parliamentary arithmetic for a new electoral law or a premature dissolution remains unpredictable, since Renzi’s centrist junior coalition partners, such as Alfano’s NCD, are less enthusiastic about an early election,⁹ and the PD minority might rebel against Renzi’s party line, or even heed Massimo D’Alema’s proposal for a leftwing breakaway. Nonetheless, an agreement was reached on January 31 between the PD, M5S, the Lega and the FdI to start discussions on a new electoral law in the Chamber of Deputies on February 27 - a timetable that increases the chance of a June election.

Renzi has now uncritically accepted the M5S proposal to extend theItalicum, as modified by the Consulta judges on January 25, to the Senate, thus fulfilling the letter, although certainly not the spirit, of Matarella’s advice to create two compatible electoral laws for the two Chambers. Renzi’s thoughtlessness beggars belief. The M5S proposal completely rules out any pre-electoral coalition - the best safeguard that the PD could have had to prevent it from being overtaken by M5S. In short, Renzi seems set on a course of action that would probably lead to a PD defeat and hand the premiership to one of Grillo’s young minions, since an M5S minority government could gain Lega and FdI support in any vote of confidence.¹⁰ Interestingly, former president Giorgio Napolitano - certainly not a man on the left of the PD - has warned Renzi in hardly veiled terms against an early election.

Charges against Raggi

On January 24, the tangled web of deceit spin by Virginia Raggi, the M5S mayor of Rome, finally began to unravel, with legal consequences. She was summoned to appear before investigating magistrates on January 30 in relation to two possible criminal offences: “abuse of office”; and giving false testimony in an official document.

The abuse of office alleged is, of course, the appointment of Renato Marra, the brother of Raffaele Marra (her former head of personnel, generally known in the city hall as ‘Rasputin’¹¹) to the post of director of the municipal tourist office. The seizure of Rasputin’s mobile phone and computer at the moment of his arrest on December 16 provided the magistrates with an extensive email trail to back up whatever compromising information they had already collected by intercepting his phone calls to the construction magnate, with whom he is alleged to have had corrupt dealings over several years when he held posts relating to housing and planning policy under earlier municipal administrations.

None of these recently examined emails offers any support at all to Raggi’s repeated claim that she excluded Rasputin from any involvement in his brother’s appointment, and handled the entire matter herself, rigorously comparing a large number of rival CVs. The emails make it quite clear that Rasputin had urged his brother to apply for the post, and given him detailed advice on his application, emphasising whom to talk to rather than what to write on any form. Moreover, there is even an email from Raggi expressing annoyance with Rasputin because he has substantially increased his brother’s salary - by €20,000 - without informing her in advance.

Whilst the charge of abuse of office had been widely forecast, the additional one of giving false testimony was less expected, and seems to have come as a shock even to Grillo. This latter charge arose from Raggi’s story about her single-handed appointment of Renato Marra, which she had foolishly put in a written deposition to the Roman municipality’s own anti-corruption unit, and which that unit had then automatically passed on to ANAC (the national anti-corruption authority). One might have imagined that Raggi, as a trained lawyer with many years’ experience in practice, would have realised that such a statement was much more dangerous to her than her habitual and increasingly casual lies to journalists, ordinary Roman citizens, external political opponents and even anybody inside M5S, but outside her Raggio Magico. The increasing reluctance of the more honest members of the Roman M5S to back up Raggi’s shameless and utterly implausible deceit became apparent on the evening of January 24, when the assessore (municipal cabinet member) for economic development, Adriano Meloni, told the prosecutor’s office: “It was Raffaele Marra who suggested to me the nomination of his brother, Renato, as director of the tourism department.”¹²

Whatever convoluted attempts Raggi may make to play up possible ambiguities in the emails on Rasputin’s mobile, it is hard to see how she could explain this away in an interrogation by magistrates without calling Meloni a liar. There is a very plausible account - subsequently denied by Grillo - that no sooner had Raggi got into her mayoral office on January 25 than she received a furious phone call from an incandescent Grillo on her mobile, in which he accused her of concealing the additional charge of false testimony from him - he only found out about it in the morning papers. Gross ingratitude, given the way he and Davide Casaleggio had changed the M5S code of conduct to protect her from the consequences of an abuse of office charge.¹³ Hypocritical demagogue that he is, Grillo has now given orders that M5S must rally round Raggi and assert her innocence.

In reality, there have been articles in both La Repubblica and Corriere della Sera claiming that Raggi was attempting to plea-bargain. These were presumably inspired by Raggi or her lawyer.¹⁴ Whilst false testimony might appear the graver offence in the eyes of the Roman public, the suggestion was that Raggi might plead guilty to that offence if the abuse of office charge was dropped, since only the latter could trigger her automatic ousting under the Severino law - the very same law which led to Berlusconi being barred from elective office. Any such enforced removal of Raggi from public office would make it hard for M5S supporters to repeat their shrieks of “Honesty, honesty, honesty!” on the streets - chants which had been so prominent a feature in their merciless hounding of the former Roman PD mayor, Ignazio Marino. However, Raggi’s continuance in office via plea-bargaining would have a serious downside, since any plea-bargaining would be a partial admission of guilt on the part of ‘Little Red Riding Hood’.

Raggi and her lawyer, Alessandro Mancori, had by January 29 managed to persuade the magistrate to postpone her interrogation for a few days, presumably so they could get her story straight, get her to remember her lines¹⁵ and, above all, prepare themselves for likely awkward questions. Raggi’s interrogation by the investigating magistrates on February 2 lasted for eight hours, which caused a certain amount of panic in the ranks of M5S, with some of the more anxious members wondering whether she was about to be arrested and kept in custody like ‘Rasputin’. Although by 5pm on Friday February 3 Raggi was claiming on Facebook that the interrogation had been “long, but cordial”,¹⁶ it was in reality very fraught indeed. She obstinately stuck to her story about the Marra brothers, claiming she had appointed Renato to his leading role in the tourism office herself, but blaming ‘Rasputin’ for increasing his brother’s salary without telling her (which would constitute an “abuse of office” by the former head of personnel). One suspects the magistrates were not impressed by this account.

Moreover, her attempt to exculpate herself by laying more blame on ‘Rasputin’ (and thus increasing the length of his potential sentence) has led him to retaliate by announcing that he will make a statement to the magistrates in the next few days - his defence lawyer seemed very relieved that they had finally got the mobile phone with the numerous damning emails back from the prosecutors, and has said that they intend to make extensive use of the emails in Rasputin’s defence, which does not bode well for Raggi.

However, this was not the reason for such extended questioning of the mayor. Raggi unexpectedly found herself asked about a completely different matter, for which neither she nor her defence lawyer were at all prepared, and of which she claimed to have no prior knowledge whatsoever. The investigating magistrate suddenly confronted her with the fact that Salvatore Romeo had in January 2016 taken out a €30,000 life insurance policy, of which she would be the beneficiary in the event of his death.¹⁷

Grillo-Trump

It is now quite clear why the devious and power-hungry Grillo is so anxious to have an early general election before the sordid saga of Raggi and Rasputin reaches its conclusion in the courts¹⁸. What could prove a tragedy for the Italian masses is Renzi’s delusionary and narcissistic drive to push the PD to the polls in June - reiterated yet again in his speech on January 28.

If Renzi bends interim premier Paolo Gentiloni and the PD parliamentarians to his will, he risks handing control of the national government to the sinister comedian,¹⁹ whose constantly repeated phrase of “the statesman, Trump” is no coincidence, given how much they have in common - not just at an ideological level (most obviously their hatred of immigrants and love of closed borders), but also at a personal one (both love to communicate by one-sided edicts on social media, both hate the mainstream press, both have a love of ‘alternative facts’ and both are thin-skinned bullies who love to abuse and humiliate their opponents, but have almost zero tolerance for criticism of any sort).

Although as yet no additional criminal charges have been brought in relation to this matter, clearly the magistrates were suspicious that there was some link between the insurance policy and Romeo’s subsequent promotion from an ordinary municipal employee on a €39,000 salary to the head of Raggi’s secretariat on €110,000 (subsequently reduced to €93,000 by ANAC). Moreover, this insurance policy had been paid for in one fell swoop rather than in instalments, which raised questions as to where a man on €30,000 a year got such a sum at short notice. Raggi sacked Romeo on December 21 as a result of pressure from the leadership of M5S in the wake of Rasputin’s arrest on December 16. The reversion to his original €39,000-a-year salary, and consequent loss of power and prestige, has alienated Romeo from Raggi, and all recent communication seems to be through their respective lawyers. Although the ‘reason’ was said to be relazione sentimentale, both Raggi and Romeo deny any affair.

Journalists on both La Repubblica and Il Corriere favour another explanation. They suspect Romeo was in some way involved in funnelling money from Roman far-right circles linked to Gianni Alemanno²⁰ to Raggi’s faction in M5S.²¹ It is worth pointing out that on January 24 Romeo - called as a witness in the Mafia Capitale trial - was asked by the prosecution how many times he had met Gianni Alemanno, and replied: “Only once in my life.”

As an anonymous source involved in the investigation told LaRepubblica (February 3), with almost British understatement, “Let us say that things are not quite like this, that this memory is a little reductive” l

Notes

1. For more details, see my review of Salvatore Cannavò’s La Rifondazione mancata, 1991-2008 (‘Failed refoundation’ Weekly Worker October 18 2012).

2. It is no accident that the editor of the PD Daily L’Unità, Sergio Staino, wrote a vitriolic personal denunciation of the combative Camusso a few weeks ago. He contrasted her unfavourably with earlier CGIL leaders like Luciano Lama and Bruno Trentin, whom he saw as more concerned with the ‘national interest’. Later in January the hapless Staino was making desperate appeals for support from Camusso and the CGIL when his hero, Matteo Renzi, helped pull the plug on Unità’s finances yet again, having decided that even the totally subservient revived version of the party daily, which no longer gave any space to the PD minority, had too low a circulation to save.

3. As in so much of Renzi’s anti-working class legislation, an English rather than an Italian term is always used. The precedent set by Thatcher’s 1980s anti-union laws for continental neoliberals should never be underestimated, although it frequently is by ‘left’ Brexiteers.

4. Needless to say, M5S sided with politically backward workers in the Almaviva call centre in Rome, when they objected to their militant shop stewards’ refusal to accept a brief postponement of their mass redundancy conditional on far lower wages and far worse conditions. M5S argued that workers did not need representatives. Given the participation of some Almaviva workers in a demonstration called by neo-fascist Fratelli d’Italia leader Giorgia Meloni in Rome on January 28, the need for a class-conscious vanguard is indisputable.

5. According to an Ipsos poll, cited in the Corriere della Sera (January 27), M5S has 30% support, and the PD 29.7%, with Forza Italia on 12.5%, and the Lega Nord on 12.4%.

6. See La Repubblica January 28. The majority of M5S councillors in Genoa have recently left the party, proclaiming “Never with the right!” (Mai con la Destra!).

7. This means openly proclaimed alliances between separate parties, not the bizarre hypothetical mish-mashes standing under a flag of convenience discussed above.

8. The Lega and the FdI are already very close, and share a common patron in Marine Le Pen.

9. Their low opinion poll ratings mean many centrist parliamentarians would lose their seats.

10. The irrationality of Renzi’s line has been pointed out by commentators in the mainstream press - see Corriere della Sera and La Repubblica (both February 1) for sharp critiques from the centre-right and centre-left respectively.

11. See my earlier article, ‘Rasputin and Little Red Riding Hood’ (Weekly Worker January 19) for more details.

12. La Repubblica January 26.

13. Corriere della Sera January 26.

14. In a Trump-like rant on his blog on January 28 against the alleged lies of the mainstream press, Grillo has subsequently denied that this plea-bargaining was ever even contemplated.

15. It would be essential to avoid subjecting the magistrates to anything resembling her farcical efforts in the council chamber, where she has been known to read out poorly edited, cut-and-paste, verbatim extracts from Wikipedia.

16. Corriere della Sera February 4.

17. Since the insurance company had no legal obligation, in the event of Romeo’s death, to inform Raggi of the policy’s existence, it seems odd, to say the least, if Romeo had not told her about it.

18. One assumes that ‘the Previti girl’ will not be able to repeat her mentor’s tactic of buying verdicts with multi-million-euro bribes to Roman judges.

19. Far too many, both in Italy and abroad, have been all too willing to overlook his old manslaughter conviction.

20. The neo-fascist former mayor of Rome.

21. La Repubblica and Corriere della Sera (both February 3).