Dialogue III: The Principle of Collegiality

Chapter VI

COLLEGIALITY OVER PERSONALITY:

THE REJECTION OF SEPARATE OPINIONS

Collegiality Over Personality: The Rejection of Separate Opinions in Italy

Diletta Tega

SUMMARY: 6.1. The meaning of the collegiality principle and its repercussions on separate opinions. - 6.2. The Constitutional Court’s position: preservation of the status quo. - 6.3. Pros and cons: the debate among scholars. - 6.4. Conclusion.

The meaning of the collegiality principle and its repercussions on separate opinions

The Italian Constitutional Court (ItCC) has highlighted many times, through its Presidents, that collegiality[1] is one of its essential features. This collegial character is evident during the decision-making process, but it also has a deeper meaning for the Court, well beyond mere respect for procedural rules. The Court speaks in the public arena with a single voice - that of its rulings. The judgments are the result of a deliberative process, which redresses the potential (alleged) political biases of single judges. Gustavo Zagrebelsky, President of the ItCC in 2004 and a very influential constitutional lawyer and scholar, stated, “Italian constitutional judges do not vote, they deliberate”. This pinpoints the fact that judges make an effort to convey a sort of uniform consensus [2] particularly concerning the most sensitive constitutional issues. The ItCC moves following a horizontal and inclusive logic, intended to account for every possible constitutional argument and to unify diverging viewpoints, without casting and tallying individual votes. This - provided that the deliberation process is animated by effective participation and genuine dialogue among the judges - is an important facet of the ItCC’s relationality in its internal dimension.

In recent years, Court Presidents have repeatedly highlighted this feature in answer to the claims - made by the center-right coalition - that constitutional judges have a precise partisan alignment and that the Court is politically over-exposed. The ItCC had, and continues to have, an impact on important parts of the Governments’ agenda. For example, judgment 466/2005 on Law no. 189/2002 amended legislation concerning immigration and asylum. It also dismantled pieces of legislation passed specifically to favor the President of the Council of Ministers (e.g. judgment 24/2004 on Law no. 140/2003, which suspended prosecution of the President while he was in office).} The ItCC has attained a conspicuous position since the late 1990s, becoming central to both the form of the government and the form of the state in Italy. This is because the ItCC scrutinizes legislative choices made by Parliament and Government (through legislative decrees and decree-laws) while they are still in office, and the Court resolves conflicts among State powers, between the State and the Regions, and between Regions. To draw again from Gustavo Zagrebelsky, “the Court is in itself in-politica” (in-politics). In other words, it is embedded in a constantly fermenting body politic because its powers affect the functioning of the political system - the Court is able to halt or adjust the choices made by Parliament, the Government, and the President of the Republic - without belonging to the political system. In light of this, the ItCC must be regarded as the guardian of the pactum socie-tatis.

How does collegiality à l’italiénne work? The President of the Court, with the assistance of the (Jfficio del ruolo, distributes pending cases among the judges. The judge appointed as rapporteur (relatore) has the duty to study the case, in order to open public discussion about it in case of a public hearing, and, more importantly, to bring it before the convened ItCC when it gathers in the privacy of the Conference Room (Camera di consiglio). Secrecy envelops both the discussion among the judges and any voting when it takes place.[3] The decision is usually written by the judge rapporteur, following the suggestions made during the discussion. If the rapporteur disagrees with the outcome, he or she may decline to write the decision, and another judge will be appointed as drafter (redat-tore).b The decision’s heading reports the name of the judge rapporteur, and, if he or she has relinquished the task of writing, the final part of the text will indicate a different judge as the drafter. Since 1987, decisions have been signed by both the President and the drafter (previously, all the judges signed).

Thus, decisions tend to incorporate the Court’s prevailing line of reasoning, while obiter dicta are often inserted to take into account minority views. Zagrebelsky reports that when he was on the Court, an attempt was made to write down all the various opinions within a single judgment, but it was not successful because the minority felt misinterpreted.

The content of a decision remains secret until the written text has been approved, deposited, and published. During the last ten years, the press office has published very brief press releases on the Court’s website regarding the outcomes of the most important or popular cases. Only very recently, the same press office has begun to publish longer summaries, once the full decision is made public, intended to “speak” to public opinion (and particularly to journalists).

The option to introduce separate opinions[4] would be quite a dramatic change within a system shaped around the principles of collegiality and secrecy. Separate opinions would break the secrecy, subjecting to public scrutiny topics and discussions that are currently confined to the Conference Room. The Italian aversion to separate opinions stands out as an unusual feature in the comparative landscape of continental Europe. Although with strong differences regarding sources, structure, style, and practice of law, separate opinions are allowed in almost every constitutional justice system, with the notable exceptions of Italy and France.

And yet, separate opinions represent a topic that continues to emerge periodically not only in the general legal debate, but also within the Court itself and in Parliament.

In this paper, I critically assess the official position of the ItCC and of several of its judges, as well as the outcomes of the doctrinal debate. I strongly agree with Di Martino’s approach to the question of whether separate opinions may be introduced: she identifies different periods in the Court’s history - specifically in terms of its relationships with constitutional organs and public opinion - to contextualize the issue.11

Many bills have contemplated the issue in Parliament, but almost none of them were ever discussed. It is worth briefly revisiting the seven noteworthy times the topic was considered. The first time took place as a part of the discussion on the legislation regarding the foundation and functioning of the ItCC (Law no. 87/1953). The possibility of dissents was rejected for fear that judges would be subjected to partisan political influence and that the autonomy and prestige of the newly created organ would be diminished. Second, in 1981, Stefano Rodota (professor of private law and an influential progressive intellectual who became a member of Parliament as a left-wing independent) presented a legislative proposal to introduce dissenting opinions.[5] The issue was brought up twice more: during the 1983 -1985 discussions of wider constitutional reforms, when the so-called ‘Bozzi Commission’ was established; and in 1997, in the text developed by the ‘D’Alema Commission.’ On the latter occasion, the Commission’s majority gathered around the idea that the formal introduction of dissenting positions would emphasize judges’ responsibility and enhance the clarity and consistency of decisions. None of these initiatives met with any degree of success. The issue resurfaced again in 2004, when a former President of the Republic, Francesco Cossiga, presented a constitutional bill (XIV Legislature, A.S. no. 2690) as a reaction to the aforementioned judgment 24/-2004. In 2008, six bills concerned dissenting opinions were introduced (XVI Legislature, AC nos. 446 and 1598; AS nos. 200, 216, 1030,1158). The last bill was presented in 2015 (XVII Legislature, AS no. 1952) by Linda Lanzillotta, a senator of the Democratic Party. This bill, too, had the somewhat inappropriate appearance of being a polemical reaction by Parliament against the much-contested decision no. 70/2015 (which struck down a rule that severely limited the annual automatic increase for retirement pensions, a move urgently imposed by the Monti Government in 2011 during the acute phase of the financial crisis). Neither of these bills was ever discussed.

  • [1] This principle is enshrined in Articles 16 and 18, Law no. 87 of 1953 (On the establishment and functioning of the Constitutional Court), and in Article 18 of the Additional rules for proceedings before the ItCC (Norme integrative per i giudizi davanti alia Corte costituzionale, adopted by the Court itself on 16 March 1956). Among other literature, see: V. BARSOTTI, P.G. CAROZZA, M. CARTABIA, A. SlMONCINI, Italian Constitutional Justice in Global Context, Oxford, Oxford University Press, 2016, 46 (and 239, on the “relational mindset” of the ItCC); G. ZAGREBELSKY, La Corte costituzionale italiana, in P. PASQUINO, B. RANDAZZO (eds.), Come decidono le Corti Costitu-zionali (e altre Corti), Milan, Giuffrè Editore, 2009, 59-83. According to Gaetano Silvestri (interviewed just after his Presidency of the Court), the ItCC expresses its collegiality within a symphony of many voices, with Presidents playing the role of conductors, able to find and distill a unitary position. For this reason, the President expresses their personal opinions after all their other colleagues, in order not to unduly influence the discussion (see D. TEGA, La Corte costituzionale vista da vicino Intervista di Diletta Tega a Gaetano Silvestri, in 3 Quadernicostituzionalil51 (2014), 758-759).
  • [2] G. Zagrebelsky has expressed this position several times, for example in G. ZAGREBELSKY, ïntorno alla legge. Il diritto come dimensione del vivere comune, Turin, Ei-naudi Editore, 2009, 305, 309-310. He recalls the majority opinion by Justice Robert Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943): “One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote”. Note that this passage refers to political elections, while Zagrebelsky extends it to judicial deliberations. 2 ’See P. PEDERZOLI, La Corte costituzionale, Bologna, Il Mulino, 2008, 219. On the transformation undergone by the political parties, see Italian Politics: a review, New York-Oxford, Berghahn, 1985-2016; D. TEGA, The Italian way: a blend of cooperation and hubris, in the Heidelberg Journal of International Law 3/2017 in 77 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 685 (2017). This over-exposure was expressly mentioned in the 2012 Annual Report (Relazione sulla giurisprudenza costituzionale) by President Franco Gallo, available at www.cortecostituzionale.it. 3 G. ZAGREBELSKY, ïntorno alla legge. Il diritto come dimensione del vivere comune, cit., 303 ff.
  • [3] After the expiration of their term, several judges have commented publicly on how certain decisions were made, occasionally revealing previously unknown details. 2 This discrepancy occurred for the first time in order 52/1988. These occurrences are episodic, but still current: they happened approximately 80 times between 1988 and 2019. 3 G. Zagrebelsky, La Corte costituzionale italiana, cit., 77.
  • [4] Here I have used the expression “separate opinions” to refer to both concurring and dissenting opinions, without taking into consideration the different types within both categories. Hereinafter, I will refer to dissenting opinion only, as historically this has been the focus of Italian speculation on this subject. 2 ’See V. ÜENTI, Per il ritorno al «voto di scissura» nelle decision! giudiziarie, in Le opinioni dissenzienti dei giudici costituzionali ed internazionali (Scritti raccolti a cura di Costantino Mortati), Milan, Giuffre Editore, 1964, 1-20, for a broader history of the Italian tradition concerning judicial deliberations (which shifted in favour of providing a single line of reasoning in the eighteenth century). See also, A. DE NlTTO, In tema di opinioni dissenzienti nell’esperienza delle corti italiane, in A. DE NlTTO, Diritto dei giudici e diritto dei legislatori, Lecce, Argo, 2002, 50 ff. 3 See the analysis by A. Di MARTINO, Le opinioni dissenzienti dei giudici costituzionali: uno studio comparativo, Naples, Jovene Editore, 2016, and K. KELEMEN, Judicial Dissent in European Constitutional Courts. A Comparative and Legal Perspective, London, New York, Routledge, 2018. The latter, in particular, offers a valuable perspective on East-Central European constitutional courts, 120 ff. 4 A. Di MARTINO, Le opinioni dissenzienti dei giudici costituzionali: uno studio comparative, cit., 319-320 ff.
  • [5] 2 stitutional law proposal which, in 1973, was withdrawn almost immediately, see K. 3 KELEMEN, judicial Dissent in European Constitutional Courts. A Comparative and Legal Perspective, cit., 97. 4 See S. PANIZZA, L’introduzione dell’opinione dissenziente nel sistema di giustizia costituzionale, Turin, Giappichelli Editore, 1998, 485 and A. Di MARTINO, Le opinioni dissenzienti dei giudici costituzionali: uno studio comparativo, cit., 370.
 
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