Referendum: towards the umpteenth mortification of the mechanisms of direct democracy

I will not be explaining in detail the consequences of the potential referendum vote on Sunday 12 June aware of the fact that, with good verisimilitude, the silent and subtle ideological contrast on the issue between alleged "guarantors" and approximate "executioners" could represent the distortion of the system capable of compromising its success even in percentage terms.

Let us be clear: “nulla quaestio” on the use of the “referendum” as the highest expression of “direct democracy”, of the participation of the people in the decision on fundamental issues, including those of a purely legal nature. But when that mechanism seems to have become, in the context of common feeling, a mere expression of a precise political direction, far from the everyday life of ordinary people, by virtue of what valid and effective inspiring motto can the population actually feel involved in the results of the vote itself?

Are those referendum questions really suitable for contributing to the improvement of the management of the penal system "latu sensu" considered?

Let's face it all: that on Sunday seems to represent, indeed, a vote to the ritual opposition between the highest ruling classes of the country, functionally merged by the Government of the (alleged) Best (probably fished from the party "reserves" to offer a semblance of novelty) which a vivid and sincerely very unconvinced and equally unconvincing expression of the most bitter contrast between those who live and interpret the role of the judiciary in its "docimological-moralizing" function and those who, on the other hand, are led to consider only its "inquisitorial" profile. All this, in the context of a very stringent and pathological motivational result, in which the polarizing extremization of the two opposing dysfunctional ideologies by definition, the "moralizing" and the "inquisitorial" one, inevitably ends up frustrating and wearing down not only the terms of the debate , now pervaded by itself sterile para-juridical technicality, but also the level of tolerance of the subjects called to express their "yes" or their "no" just when, flattened and disheartened due to historical contingencies as pandemic as war, would like to discuss something else to improve their personal management of daily life and its eventualities.

What is certain, beyond and beyond the untimely timing of the referendum, is that from next Monday we will find ourselves, once again, with a "stalemate" , with the umpteenth failure of the country's ruling class that has always been committed to try to save itself at the expense of the common good, at the expense of that citizenship which, on the contrary, should represent the ultimate goal of political action that has been forgotten for too many years.

How can the State, "rectius", the current rainbow executive, even think of putting a hand to the reform of justice if, paradoxically, "who" (the value is clearly objective-generic) should reform it (the State) is in itself responsible for the dysfunctions that have crystallized over time? In short: who should check the conduct of the controller? The controller himself? Can justice ever be conceived as a mere appendage of democracy for the use and consumption of politics and its mechanisms?

Are the same way of proposing referendum questions and therefore the correct perception of their contents really suitable to allow ordinary people, afflicted by contingent needs, to grasp their meaning in order to express themselves without uncertainty for the "yes" or the "no"?

The answers, as always, are directly consequent. Meanwhile, because, of course, reform or non-reform (and that Cartabia is making water on all sides), none of us, I believe, wants to give up the model of the just trial guaranteed by article 111 of the Constitution, probably not implemented, in many cases, for subjective instrumental degeneration (the responsibility is always personal of the subjects not of the existing rules), and none of us, I believe equally, can ever share an individualistic approach (instrumental to the interests of the parties concerned from time to time) with respect to issues of general interest.

So why, to be honest, the same reading of the referendum questions, and that on the separation of the careers of magistrates (i.e. those with prosecuting functions and those with judicial functions) appears most indicative in all its complexity as it is conditioned by the mixture, more or less deliberate, between the artificiality of the matter and the abrogative nature of the referendum, it has given rise to the appreciation of a text that is not only long and cumbersome, but even incomprehensible to all those who are not technicians of the matter, and who therefore lack, despite themselves, specialized knowledge useful to allow the conscious expression of the vote: admitted and not granted, that once the meaning is understood, they really feel it as a decisive factor.

Finally, because, most likely, the outcome of the consultation will end up being managed on the media level in a suggestive and dangerously "retaliatory" manner with respect to the expectations of the promoters, perceived, it would seem, as "subjects" "directly interested" in the results of the consultation.

In short, this referendum, on balance, and given the dramatically untimely timing of its proposition, will be yet another mortification of the mechanisms of direct democracy as it is unable to reflect in public confrontation, or at least that should be, significant elements of truth accompanied by necessary juridical rationalism useful to act not only as a connecting mechanism between the future enunciation of the relative norm arising from the outcome of the vote, and its repercussions on the correct administration of justice, but also to prevent everything from being overwhelmed by the sterile populist propaganda of those, on the other hand, they are led to make "a whole grass a bundle" without considering that the degeneration established by the Palamara case, indeed, concerns the so-called "upper floors" bearers of "personal interests" that have nothing to do with the daily administration of justice.

Regardless of what the outcome of the referendum will be, assuming that the required quorum is reached , the real "revolution" to be expected is that finally a true fiduciary balance can be re-established between the three highest powers of the State in the knowledge that in order to truly have a truly "just" "justice" each of the subjects called to administer it (both on a political and juridical-administrative level) should limit themselves to fulfilling exclusively the mandate received by imposing a regime of non-interference on that of others. It being understood that the subjective degeneration of some constitutes the imponderable mystification of individual action and never the result of the more or less stringent formulation of a norm.

Giuseppina Di Salvatore

(Lawyer - Nuoro)