Direct democracy and the prohibition of the binding mandate

World Congress of Constitutional Law 2014
Workshop n. 16: Direct democracy
Title: Direct democracy and the prohibition of the binding mandate: the Italian debate
by Elena Falletti *, Università Carlo Cattaneo – LIUC, Castellanza (Italy), email: [email protected]
Abstract: One of the most controversial topics of the current political debate in Italy is about the prohibition of the
binding mandate previewed by art. 67 of the Italian Constitution. In a context of collective distrust in politics and in the
administration of public affairs, a new party, the Movimento Cinque Stelle, (hereinafter, M5S), has exploded collecting
25% of votes. One of the points of the M5S' program was the claim that its MPs are only spokepersons of the voters,
without any autonomy from them. One of the campaign promises was that they would submitted bills to be deposited in
Parliament to public judgment through the use of an online platform. To participate in these debates, Italian citizens
have to register to the online platform with a scanned copy of their ID document. However, this online platform is not
neutral, because it belongs to Beppe Grillo's blog. Beppe Grillo is the founder and the political leader of M5S, but he
did not run in the political campaign. This circumstance presents problems of net neutrality, privacy and use of
participants' personal data. Beppe Grillo's staff declared that the platform has around 90,000 certified subscribers, whilst
the M5S' electors number almost 9 million. This is a huge element of controversy: can a minority be involved in the
MPs' commitment, when each MP represents the whole Nation? Furthermore, political debate among M5S' supporters,
critics, and MPs has been developed on social network such as Facebook and Twitter, especially on political
representatives' personal pages. This phenomenon is connected with the advent of the Internet in political participation
and the purpose of this paper is to understand how to balance the contribution of the direct participation of the electorate
with the prohibition of binding parliamentary mandate present in the Italian Constitution.
1. Introduction:
The “Movimento 5 Stelle (Five Star Movement, hereinafter M5S), a new entity on the Italian
political stage, has roots deeper than the boom at the 2013 political elections could show. In fact on
political election of 24-25 February 2013, M5S gained 25.55% of votes and 163 Members of
Parliament (109 deputies and 54 senators) becoming the most voted party in Italy 1. Everything
started on 2005, when Beppe Grillo, a famous comedian, published his blog at beppegrillo.it.
Quickly became “one of the most widely followed in the world over the past few years” 2. Now,
Beppe Grillo's blog has become a virtual agora where he disseminates his political opinions,
commented on by hundreds of people. 3 Indeed, it hosts several activities, such as dozens of
“meetups”, 4 groups of activists sharing the same view on political, environmental and social issues,
* Assistant Professor in Private Comparative Law at Università Carlo Cattaneo – LIUC, Castellanza, Italy. Each
Internet source is accessed on 28th March 2014.
1 N. Genga, Movimento 5 Stelle, primo partito e vincitore morale, in Federalismi, 5 March 2013,
http://www.federalismi.it/ApplOpenFilePDF.cfm?artid=21978&dpath=document&dfile=05032013102637.pdf&cont
ent=MoVimento+5+Stelle:+primo+partito+e+vincitore+morale+-+stato+-+dottrina+-+
2 A. Brasseur, Internet and politics: the impact of new information and communication technology on democracy,
Council of Europe, Parliamentary Assembly, Report | Doc. 13386 | 13 January 2014, para 37.
3 T. Muller, Beppe's Inferno, The New Yorker, February, 4 2008.
4 Meetup (TM) is the social network whose use was suggested by Beppe Grillo himself for coordinating local politic
1
namely the supporting structure of M5S political participation, the blogs of local political groups
involved in the municipality or regional administrations, and the blog related to the parlamentary
activities themselves.
Through his blog, Beppe Grillo organised three large public protests, the “V-Day(s)” in 2007 5 in
Bologna, 2008 6 in Turin and 2013 7 in Genoa. The “V” signifies “victory, vendetta, and, especially,
“Vaffanculo”(“F**k off”)”. 8 In spite of using a pretty vulgar insult, during these mass meetings,
Beppe Grillo and other speakers submitted to public attention the core of their political thinking,
especially: direct public participation, public water supply, protection of the environment, public
transportation, free wi-fi and eco-sustanaibility. In spring 2009 in Florence there was the first
national meeting of “Liste Civiche a Cinque Stelle” 9 (Five Star Civic Lists), that represented the
first experience in an administrative election. It involved 15 “liste civiche” 10, following a common
electoral program 11, and the “Liste Civile a Cinque Stelle” gained 23 municipality representatives 12.
During Autumn 2009 Beppe Grillo officialy founded the “Movimento Nazionale a 5 Stelle” (M5S)13
that participated in local and regional election in 2010 gaining 3.67% of votes and two
representatives in Piedmont and 6% of votes and two representatives in Emilia Romagna 14. In 2011,
the vote for M5S continued to grow at municipality elections: in Turin M5S gained 5.27% and 2
representatives, Novara 7.77% and 1 representative, Milan, 3.45% and 1 representative, Bologna
9.41 and 2 representatives 15. Finally in 2012 the M5S gained 4 mayors 16. The most important of
5
6
7
8
9
10
11
12
13
activities http://it.wikipedia.org/wiki/Movimento_5_Stelle#Meetup. According to Beppe Grillo's Blog, there are
1314 groups with 163, 194 members in 23 countries (source http://beppegrillo.meetup.com/ last visited 23 February
2014).
“Grillo also used the rally to urge Italians to sign a petition calling for the introduction of a "Bill of Popular
Initiative"
to
remove
from
office
Italian
parliamentarians
with
criminal
convictions”
http://en.wikipedia.org/wiki/Beppe_Grillo#V_movement
Grillo used the rally against “the Italian press and the financial support it receives from the government. Grillo
strongly criticized the Italian press for the lack of freedom” http://en.wikipedia.org/wiki/Beppe_Grillo#V_movement
Grillo used the rally for announcing the partitipation of the M5S to the 2014 Election to the European Parliament.
T. Muller, Beppe's Inferno, supra n.3.
F. Bordignon, L. Ceccarini, Five Stars and a Cricket. Beppe Grillo Shakes Italian Politics, South European Society
and Politics, Volume 18, Issue 4, December 2013, pages 427-449, p. 430.
http://www.beppegrillo.it/2009/03/in_diretta_da_f.html. It was related to the civic lists of Treviso, Firenze, Prato,
Bologna, Fano, Roma, Torino, Pescara, Perugia, Bergamo, Nettuno, Spoleto, Forlì, Pozzuoli, Fiumicino.
It was written in the “Carta di Firenze” (Florence Charter),
http://www.beppegrillo.it/listeciviche/documenti/carta_di_firenze.pdf
http://www.beppegrillo.it/2009/07/comunicato_poli_15.html
J. Bartlett, C. Froio, M. Littler, D. McDonnell, New political actors in Europe : Beppe Grillo and the M5S, London,
Demos, 2013, 15.
14
http://elezionistorico.interno.it/index.php?tpel=R&dtel=28/03/2010&tpa=I&tpe=A&lev0=0&levsut0=0&es0=
S&ms=N
15 http://elezionistorico.interno.it/index.php?tpel=G&dtel=22/05/2011
16 Parma as well as Sarego (Vicenza), Comacchio e Mira (Ferrara)
http://www.ansa.it/web/notizie/rubriche/topnews/2012/05/21/Grillo-M5S-ha-preso-4-sindaci_6907249.html
2
these was Parma 17, a well-known cultural and industrial town in the Po valley 18.
This strong and continuous electoral increase of M5S, especially during the 2013 elections, is
grounded on the one hand to diffuse popular disaffection in politicians accused of corruption, and
on the other hand in the M5S' distinctive elements from other political parties had great importance.
In particular, the opportunity to be a M5S candidate must not be enrolled in other parties or have no
criminal convictions or ongoing criminal trials. But, the most important element is the promotion of
direct participation in democratic life through a strong criticism of the prohibition of binding
mandate.
2. The constitutional prohibition of binding mandate
Parties and unions are grounded on the concept of representation. However, historically political
representation has not always been expressed by them. Indeed, the experience of the first
parliaments shows that the rule was the binding of the mandate, i.e. the written authorisation given
to those who were called upon to represent classes, communities or territories19, in a feudalistic
perspective 20, in States-Generales in France 21. Basically, the representative's activity was limited to
an oral exposure of the content of the cahiers de doléances prepared by the constituency that elected
him 22. During the French Revolution the binding mandate was an issue to discuss. Three days after
the Tennis Court Oath Louis XVI tried to manage the events that caused his fall, and enacted the
ordinance of June 23, 1789 declaring the prohibition of the binding political mandate. This act
opened the way to the end of the feudal system of the political representation characterising the
Ancien Régime 23.
Subsequently, the prohibition of binding mandate became the core of modern democratic life
because it consented to define in concrete terms the balance between political powers and
authorities. However, the liability of the agent, a clear fundamental issue, was not regulated. During
the drafting of the Constitution of 1793, Robespierre questioned the liability of representatives and
17 http://elezionistorico.interno.it/index.php?tpel=G&dtel=22/05/2011
18 E. Povoledo, Caustic Comedian Alters Italy’s Political Map, New York Times, May 18 2012,
http://www.nytimes.com/2012/05/19/world/europe/caustic-comedian-alters-italys-politicalmap.html?action=click&module=Search&region=searchResults%230&version=&url=http%3A%2F%2Fquery.nyti
mes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26contentCollection%3DN.Y.%2520%252F%2520Re
gion%26region%3DTopBar%26module%3DSearchSubmit%26pgtype%3Darticle%23%2FBeppe%2520Grillo
19 G. Azzariti, Cittadini, partiti e gruppi parlamentari: esiste ancora il divieto di mandato imperativo?, Democrazia e
diritto, 2009, 311 e ss.; N. Zanon, Il diritto costituzionale al libero mandato parlamentare, Torino, Giappichelli,
1990, p. 16.
20 A. Sajó, Limiting Government: An Introduction to Constitutionalism, Central European University Press, Budapest,
1999, p. 110.
21 A. Levico, Vota X. Storia di un segno, Araba Fenice, Boves, 2009, p. 83.
22 A. Levico, Vota X, supra n. 21, p. 244.
23 G. Azzariti, supra, n. 19.
3
public officials towards the “sovereign people” with his famous speech “On the constitution and
representative government” of May 10, 1793. 24
The Jacobins immediately realized that once the political autonomy of the representatives has been
guaranteed, the accountability of the mandate was lacking and consequently the political essence of
the connection between the representative and the represented should be enhanced. Following
Rousseau's theories, Robespierre argued that popular sovereignity could not be represented: “"The
domain of the people only lasts a day" and, in any case, "its delegates are corruptible". 25
This awareness causes the fall of the illusion that the will of the absent (the represented) can find
immediate expression in those who are present (the representative). This leads to the necessary
debate on how to maintain communication between voters and elected officials. Even more than
two hundred years later, these criticisms have not lost their relevance and, as then, methods of
participation and control of the representatives by the governed must still be provided in many legal
systems 26. In Italy, the prohibition of binding mandate is stated by art. 67 of the Italian
Constitution 27. It states that “Each Member of Parliament represents the Nation and carries out his
duties without a binding mandate”. According to scholars 28 the ban of binding mandate, leading to a
freedom of action of the deputies after their election, shows an ideological component. However, it
moved it to the side of the candidate. The voters can join it or not through their vote at elections.
Nevertheless, if the ideological element was shifted to the voters, there should be a situation similar
to the Ancien Régime: voters should chose a very specific program with a referendum and then
choose people responsible for making it happen in the Parliament. So, the voters have to follow
them day-to-day in fulfilling their tasks and eventually replace them, just representatives according
private to law rules if they does not comply, but this is precisely what Article 67 of the Italian
Constitution intended to prohibit.
The main problem breaching it is related to serious scandals from the inability to govern 29 to the
bribery of Members of Parliament happened in 2008 30 and 2010 31. On the first point there is a
24 G. Azzariti, supra, n. 19.
25 G. Azzariti, supra, n. 19; F. Luchaire, G. Conac, La Constitution de la République française, Paris, Economica, 1979,
p. 449 e ss.; G. Incorvati, Rousseau, il moderno principe e i princìpi dei diritti politici, in G. Incorvati, F. Marcelli,
Crisi della democrazia e crisi dei partiti in Italia e nel mondo, Aracne, Roma, 2010, 185
26 The prohibition of the binding mandate has never been fully formalized in the countries of Anglo-saxon tradition,
although it has imposed the political life. Indeed, in the United States the binding mandate is expressly provided in
presidential elections for Electoral Colleges (A. Levico, supra n. 21, p. 245).
27 In a comparative perspective, the prohibition of the binding mandate is also stated by Article 27 of the French
Constitution of 1958, Article 38 of the German Grundgesetz of 1949, Article 67 of the Spanish Constitution of 1979.
28 A. Levico, supra n. 21,p. 246.
29 G. Azzariti, La crisi dei partiti come crisi della loro capacità rappresentativa, in G. Incorvati, F. Marcelli, Crisi della
democrazia e crisi dei partiti in Italia e nel mondo, Aracne, Roma, 2010, p. 108.
30 U. Bacchi, Silvio Berlusconi 'Gave €3m Bribe to Rival Politician Sergio De Gregorio', International Business
Times, 28.2.2013, http://www.ibtimes.co.uk/italy-berlusconi-bribe-de-gregorio-440541; N. Squires, Silvio
4
pending criminal trial in front of the Court of Naples. The scandals were compounded by the fact
that the electoral law did not provide for the direct choice of the candidates by electors but only on
the list already formed by the secretariat of the parties. This law has been declared unconstitutional
by the judgment No. 1/2014 of the Constitutional Court 32 for violation of the right of citizens to
choose their own political representatives 33.
Currently, responses are quite varied, for instance, the overcoming of the traditional parties as a
bureaucratic and self-referential bodies, no longer involved in the effective defense of the interests
of their constituency ot of the citizens 34. This kind of representative politics could be replaced by
more liquid organizations, such as new forms of political movements 35, or with increased use of
direct democracy, despite the difficult experiences of referenda in Italy36, or participatory
democracy37. The politic proposal of M5S would fit in this scenario.
3. M5S' proposals on political choices and direct democracy.
M5S's proposals on political representation issues is a hybrid between direct democracy and
participatory democracy with the underlying goal of overcoming the prohibition of the binding
mandate.
Direct democracy is designed to allow interested citizens to draft legislation and constitutional
amendments for the approval of voters (the power of initiative) and to ask that laws adopted by
legislative bodies be referred to voters “for approval or rejection” (the power of popular
referendum) 38. The exercise of direct democracy is common mainly in the United States 39 and
Berlusconi goes on trial over £2.5m 'bribe' to opposition defector, The Telegraph, 11.2.2014,
http://www.telegraph.co.uk/news/worldnews/europe/italy/10630286/Silvio-Berlusconi-goes-on-trial-over-2.5mbribe-to-opposition-defector.html
31 M. Ainis, Corrotti e corruttori, La Stampa, 12.12.2010,
http://www.lastampa.it/2010/12/12/cultura/opinioni/editoriali/corrotti-e-corruttoriHcY5GA1EGlaCUkE2mt5xSM/pagina.html; M. Guerzoni, Cambi di partito, la Procura apre un'inchiesta, Corriere
della Sera, 11.12.2010,
http://archiviostorico.corriere.it/2010/dicembre/11/Cambi_partito_Procura_apre_inchiesta_co_9_101211021.shtml
32 Corte Cost. 13.1.2014 No. 1.
33 R. Dickmann, La Corte dichiara incostituzionale il premio di maggioranza e il voto di lista e introduce un sistema
elettorale proporzionale puro fondato su una preferenza, 2009, www.federalismi.it.
34 Sul punto si veda E. Greblo, La filosofia di Beppe Grillo. Il movimento 5 stelle, Milano – Udine, 2011.
35 A. Algostino, La democrazia e le sue forme. Una riflessione sul Movimento No Tav, in Politica del Diritto, 2007, p.
653 ss.
36 In Italy the most important referendum was in 1946 between Monarchy and Republic, our current form of
government. After decades of silence in public consultations, the referendum was mainly used by the “Partito
Radicale”(Radical Party) as political tool for claiming civil rights. The turning point was in 1974 when Catholic
groups proposed a referendum to repeal divorce law, but it failed. Indeed, the Partito Radicale has proposed
referenda against obscurantist law since 1981. Since 2000, four repealing referenda did not reach the quorum stated
by Article No 75 of the Italian Constitution. Only in 2011, that quorum was widly exceeded regarding the
referendum on nuclear energy uses as well as that on the privatization of essential public services.
37 U. Allegretti, Democrazia partecipativa e processi di democratizzazione, Democrazia e diritto, 2008, p. 175 ss.
38 P. F. Eckstein, The Debate over Direct Democracy at the Arizona Constitutional Convention, 48 AZ Attorney 32,
5
Switzerland 40. Sometimes it is difficult to balance direct democracy with the fundamental human
rights. The question is: if a right is inviolable, could it be submitted to a referendum on its
existence, whose its result is reserved to the majority of the voters? Examples of such kind of
problems could be observed during the debates, for instance, about coexistence among the mother's
rights to privacy and self-determination and the prohibition of abortion introduced by referendum in
the many U. S. States 41, or the well-known “Proposition 8” ballot on the constitutional prohibition
of same-sex marriage in California 42; and the referendum initiative introducing a constitutional
prohibition on the construction of minarets adopted by Swiss voters in 2009 43. Otherwise,
participatory democracy consents to interested citizens to take part to public decisions where it is
allowed. This kind of participation knows various degrees of presence of citizens in the public
institutions, most of which show subordination of this presence in the mechanisms of political and
administrative powers 44. For instance, among many examples of participatory democracy there are
the participatory budgeting experienced in some South America towns such as Porto Alegre, some
kinds of public participation in public debate in urban or environmental matters 45.
Participatory democracy of M5S is conducted in two ways: on the one hand through the “Sistema
Operativo” (“Operating System”, hereinafter “S. O.), the online debating and consultation
application on Beppe Grillo's blog about the draft of the bills proposed in Parliament by M5S
39
40
41
42
43
44
45
(2012).
In the United States, direct democracy has its grounds in Thomas Jefferson's philosophy, even if he never
advocated for such kind of practices. Specifically, he claimed for the "trust in the wisdom and goodness of the
numerical majority" combined with "a deep suspicion of government" led to a great respect for the will of the
people (M. E. Carter, Regulating Abortion Through Direct Democracy: The Liberty Of All Versus The Moral
Code Of A Majority, 91 B.U.L. Rev. 305 (2011); J. N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J.
1503, 1510 (1990).
In Switzerland, the referendum model was used since the end of the Middle Ages. However, it was suppressed in the
seventeenth and eighteenth centuries consequently the formation of local oligarchies. It reappeared in the nineteenth
century. At that period most cantons accepted the custom of submitting their constitutions and laws to the people. In
1848, imitating the United States, Switzerland became a federation, and the new constitution was put to the people
for ratification in the great majority of cantons. Later, each amendment to the the Federal Constitution has to be
approved by compulsory referendum, although in 1874 ballots were extended, on an optional basis, to cover any
federal law adopted by the parliament. Popular initiatives, which compulsory lead to a referendum, originally were
allowed only for total revision of the federal constitution. The laws of each canton makes various provision for
referendums and popular initiatives (J. F. Aubert, Switzerland, Referendums: A Comparative Study of Practice and
Theory, ed. David Butler and Austin Ranney, 1978, accessed http://www.ditext.com/aubert/switz.html).
M. E. Carter, Regulating Abortion Through Direct Democracy: The Liberty Of All Versus The Moral Code Of A
Majority, 91 B.U.L. Rev. 305 (2011)
C. M. Burnett, M. D. McCubbins, Sex and the Ballot Box: Perception of Ballot Measures Regarding Same-Sex
Marriage and Abortion in California, 2012, http://dx.doi.org/10.2139/ssrn.1884579; G. B. Lewis, G. W. Gossett,
Why Did Californians Pass Proposition 8?, 2009, http://ssrn.com/abstract=1451709
L. Langer, Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, 43 Vand. J. Transnat'l L. 863, (2010), p. 867;
D. Moeckli, Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights, Human Rights Law
Review, 2011, p. 774.
U. Allegretti, La democrazia partecipativa in Italia e in Europa, Rivista dell'Associazione Italiana dei
Costituzionalisti, 2011, n. 1, pp. 2-3.
U. Allegretti, supra n. 44.
6
representatives and on the other hand through the direct involvement of citizens in working groups
on specific issues treated by M5S municipal and regional councilors and members of parliament.
The participant must register himself or herself on this blog giving the number and a scanned copy
of his or her ID document. Then, it has to be “certified” by the staff of the blog. Consequently, the
registered participant can take part in both the voting and discussing processes.
The role of Beppe Grillo's blog in M5S political activities is fundamental because it is considered
its main political head office. Considering its specific role of aggregator of political activities and
connecting point between MPs, as spokepersons, and their voters , how is it organized? At first
sight, it is very complex and rich in information. The template of the blog is divided into three
vertical sections of different sizes: the main one concerns mostly the opinions of Beppe Grillo
himself, but also hosting different points of view and critical opinions on the activities of other
political parties. Next to it there is the second section called “minipost”, where the core of the
information published is on the development of political activites of the elected M5S
representatives. The third column of the template regards the dissemination of mainstream
newspaper articles and TV videos which deals M5S political activities.
The core of M5S' political activities is not at the center of the template, but moved to the upper right
side and contains links to the the registration form for the site and its facilities, such as the MeetUp
platforms and the S. O. 46. Even if the S. O. should be the core of M5S' political debate and an
effective instrument to access participatory democracy, it presents a strong limit to participation
because it is accessible only to persons registered and "verified" before June 30, 2013 47, the date of
the declared last update. This circumstance allows de facto the formation of an elite, whose
consistence is not clear, since registered participants' personal data are not available to the public,
because of obvious privacy reasons. This fact could be evaluated under the “code of conduct 48”
signed by each M5S candidate before 2013 political election and implemented in the statute of the
parliamentary group. It concerns many elements related to the “relationship” between electors and
M5S MPs.
The code of conduct for M5S MPs is inspired by transparency towards citizens through regular reporting on the
political choices made by voting in the Parliament. The parliamentarians will have to maintain a relationship with
subscribers through the implementation of their proposals during the span of the legislature. The main object of the
elected parliamentarians is the implementation of the Programme of M5S, in particular the principles of direct
democracy such as referenda without a quorum, mandatory parliamentary debate with an open vote on the bills
46 There are also links to the English and Japanese versions, both with simplified contents compared to the Italian
version.
47 https://sistemaoperativom5s.beppegrillo.it/, accessed March 8, 2014.
48 http://www.beppegrillo.it/movimento/codice_comportamento_parlamentare.php
7
promoted by grass-roots participation and direct election of Members of Parliament (....) Parliamentary voting has to
be motivated and explained on a daily basis with a video posted on the M5S YouTube channel.
Since the claim that M5S MPs are only spokepersons of the voters, without any autonomy from
them, their code of conduct states that:
Requests for bills arising from the M5S portal by registered members should be brought into the Parliamentary session
if they are voted by at least 20% of the registered voters. The parliamentary groups will still be able to evaluate each
proposal even if it is below the threshold of 20%.
However, consultation of verified members of the platform had already been done through the blog,
even before the O. S. implementation, which occurred on October 28, 2013 49. These consultations
were about 50, for instance: choosing the name and the position in the electoral list of each M5S
candidate at the 2013 national elections (known as “Parlamentarie”, a word inspired by a specific
adaption of the American model of the “Primary Elections”), regional (knows as “Regionarie) and
municipal elections; choosing the public office nominations for positions such as the speaker of the
Senate and the President of the Italian Republic (known as “Quirinarie”), the policy choice if illegal
immigration has to be treated as crime or not 51, the choices of the fundamental requisites of the new
new electoral law discussed by the Parliament 52; the decision whether to meet with the appointed
Premier 53, the expulsion of six MPs 54, deputies and senators, from the M5S parliamentary group.
This circumstance was explicitely stated in the code of conduct:
Expulsion from the parliamentary group of the M5S. The parliamentary M5S MPs have to meet, without distinction
between the House and Senate members. In case of clear violations of the Code of Conduct, the expulsion of an MP has
to be proposed by the majority of M5S MPs . The expulsion must be ratified by a vote online on the M5S portal between
all subscribers, by majority vote.
This procedure presents relevant problems. Beppe Grillo's staff declared that the platform has
49
50
51
52
53
54
http://www.beppegrillo.it/2013/10/discussione_proposta_di_legge_parlamentare_con_gli_iscritti.html
http://www.beppegrillo.it/2013/10/che_cose_una_piattaforma_un_portale_no_e_il_sistema_operativo_del_m5s.html
http://www.beppegrillo.it/2014/01/votazione_online_sul_reato_di_clandestinita.html
http://www.beppegrillo.it/2014/02/legge_elettorale_m5s_sistema_proporzionale_puro_o_corretto.html
http://www.beppegrillo.it/2014/02/consultazioni_con_renzie_si_o_no.html
Two of them in 2013 (N. Barone, La rete conferma l'espulsione di Gambaro, Il Sole 24 Ore, June 20, 2013,
http://www.ilsole24ore.com/art/notizie/2013-06-20/rete-conferma-espulsione-gambaro064351.shtml?uuid=AbPNOc6H) and the last four on February 26 2014 (A. Marini, Espulsi i dissidenti, M5S nel
caos, Sole 24 Ore, February 27, 2014, http://www.ilsole24ore.com/art/notizie/2014-02-27/espulsi-dissidenti-m5scaos-064049.shtml?uuid=ABQtAUz).
8
around 90,000 certified subscribers 55, whilst the number of M5S' electors was almost 9 million.
This is a huge element of controversy: can a minority be involved in the MPs' commitment, when
each MP represents the whole nation?
4. Direct democracy, proportionality and accountability to the voters.
Participatory democracy may be useful for sharing knowledge, skills and experiences, but the
solution proposed for the implementation of direct democracy through a privately owned blog could
have some problems that it could be interesting to investigate.
Primarly, a question has to be answered: <<Who are “the People 56”?>> More than 9 million voters
chose M5S at the 2013 elections, and how many of them are involved in voting through the blog?
The last experience, the expulsion of 4 senators from the M5S parlamentarian group, saw only few
tens of thousands of registered subscribers participating to the online vote. According to Beppe
Grillo's declaration disseminated by himself through Twitter, 43,368 certified subscribers were
involved in the online votation: 29,883 in favour of expulsion and 13,485 contrary to it 57. Are they a
relevant sample that can constrain senators and deputies to the will of the majority among them?
What kind of problems does it presents? Matematically, they represent 0.003% of the votes gained
by M5S in the election of February 2013. It does not seem to be a reliable vote, because it lacks
representativeness of M5S voters, since it does not pursue the principle of proportionality between
the aim pursued (the accountability of the representative in front of the represented) and the tool
used to achieve it 58, especially the online voting system. Moreover, the reasons that were grounded
the online vote on their expulsion seemed more linked to personal opinions on M5S political
strategy than a specific assignment of criminal offenses 59. The lack of debate between
representatives and the subscribers throught the online platform, and the online vote on the
representatives themselves about their stay in the parliamentary group, infringed the dignity60 of the
Parliament and of the MPs themselves. According to Article 67 of the Italian Constitution, the
55 http://www.beppegrillo.it/2013/10/che_cose_una_piattaforma_un_portale_no_e_il_sistema_operativo_del_m5s.html
56 N. Aroney, Formation, Representation and Amendment in Federal Constitutions, 54 Am. J. Comp. L. 277 (2006), p.
57 <blockquote class="twitter-tweet" lang="en"><p>29.883 hanno votato per ratificare la delibera di espulsione.
13.485 hanno votato contro. Grazie a tutti coloro che hanno partecipato</p>— Beppe Grillo (@beppe_grillo)
<a href="https://twitter.com/beppe_grillo/statuses/438738145392472064">February 26, 2014</a></blockquote>
<script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>
http://www.beppegrillo.it/2014/02/votazione_per_lespulsione_dei_senatori_battista_bocchino_campanella_e_orella
na.html.
58 A. S. Sweet, J. Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat'l L. 72,
(2008), p. 116.
59 G.
Mumelter,
Psicodramma
a
cinque
stelle,
Internazionale,
February
27,
2014,
http://www.internazionale.it/opinioni/gerhard-mumelter/2014/02/27/psicodramma-a-cinque-stelle/.
60 A. Ruggeri, Appunti per uno studio sulla dignità dell'uomo, secondo diritto costituzionale, Rivista dell'Associazione
dei Costituzionalisti, 2011, 1, p. 14.
9
representative sits on the benches of the House or Senate and represents the whole Nation, and not
just the small part of voters that took part in the online voting. Furthermore, the certification of each
subscriber, as well as the registration of access to the platform of online voting, does not guarantee
anonymity, and so the freedom of the vote. Besides, the managers and the owners of the platform
will always know subscriber's vote or preference. Subscribers' votes are data closely linked to
personal ones because of the registration of the ID documents of the voters. Such circumstance
enables the profiling of each user according to his or her vote and opinion, and limiting his or her
freedom in terms of the right to be forgotten: how long are these data related to votes and opinions
expressed kept by the managers and owners of the online voting system? Nobody knows for sure 61.
Indeed, such kind of vote apparently can give a sense of gratification to voters exasperated by
'"politicians' impunity". However, this system prevents discussion and debate, therefore, is likely to
turn into a referendum on the person of the MP, regardless of the reasons why she or he chose to
dissent from the group or rules thereof.
The approach proposed by M5S forgets that the prohibition of the binding mandate passes on to
elected politicians a task not reflecting the reality represented by themselves, as the M5S model
would like to bring about. Instead, politicians have to perform a function of representation, “in the
sense that they must represent a certain idea of society, not merely their voters” 62. So, the model
proposed by M5S could risk to legitimize its grass-roots voters as well as economic and
technocratic lobbies 63, as a new form of feudalism, fragmenting general interests.
How is it possible to claim the accountability of the representatives in front their constituents
without taking away their free independence? A comparative analysis of this issue could suggest a
solution designed under the principle of proportionality: the recall procedure. As suggested by its
name, the "recall is a way to remove an elected official before the end of the official's normal term
in office” 64. Even if it is scarcely investigated by scholars, the recall procedure has a fruitful
constitutional tradition in American history65 proving to be an “important monitoring device that
should be available to the people” 66. It has a strict connection with popular sovereignty and the
republican model. However, a constitutional monarchy of long tradition like the British one has
61 D. D'Elia, Voto online Movimento 5 Stelle: insicuro e poco trasparente, La Repubblica, 10 December 2012,
http://www.tomshw.it/cont/news/voto-online-movimento-5-stelle-insicuro-e-poco-trasparente/41677/1.html
62 G. Zagrebelsky, L'inganno, la competenza tecnica e la politica, in R. Lissoni (ed), Prometeo e la democrazia, Albo
Versorio Edizioni, Milano, 2009, p. 76.
63 G. Zagrebelsky, supra, n. 62.
64 F. Feeney, The 2003 California Gubernatorial Recall, 41 Creighton L. Rev. 37, (2007), p. 37.
65 T. Zick, The Consent of the Governed: Recall of United States Senators, 103 Dick. L. Rev. 567, (1999), p. 571. See a
critical view in J. Osborne-Klein, Electoral Recall in Washington State and California: California Needs Stricter
Standards to Protect Elected Officials from Harassment, 28 Seattle Univ. L. R. 145, (2004).
66 T. Zick, supra n. 65, p. 570.
10
been developing its introduction since the “expenses crisis during the last Parliament” 67. Indeed, it
has been taken as a model in 26 legal systems worldwide. As well as in the United States, it was
adopted, for instance, in Argentina, Canada (British Columbia), Philippines, South Korea,
Switzerland, and Taiwan. The constituents could claim the accountability of the MPs in specific
cases stated by the law, such as crime serious enough to receive a sentence, taking bribery, making
racist or offensive comments, claiming expenses that they are not entitled to, switching to a
different political party, breaking a promise in their election leaflet 68. Indeed, specific rules has to
be provided to petition for recall by the constituents 69. Recall statutes can vary from state to state,
however, they follow a general three-step model. First, voters have to circulate a petition to collect a
sufficient number of signatures. Second, election officials have to determine if the recall petition
contains the requisites stated by the law and the number of valid signatures. Third, if both elements
are accomplished the recall can be held 70.
In Italy recall does not exist. However, M5S published the new rules for applying to the 2014
election to the European Parliament 71 and among these rules a very original idea of recall was
proposed. It is stated that:
“The elected representative must resign if he or she is convicted of a criminal offense, even if under appeal. In the case
that he or she should be accused of a criminal offense, he or she will be entitled to decide whether to leave office or not.
The deputy must also resign if he or she should breach the code of conduct and the commitment to compliance with its
rules subscribed at the time of submission of his or her application in respect of subscribers to the M5S. The deputy will
be considered in serious breach where, according to the principle of direct democracy known as "recall", as already
applied in the United States: i) at least 500 members of the M5S as of 31/12/2012 residing in the jurisdiction in which
the deputy was elected justifiably have proposed to declare a serious breach; ii ) the proposal has been approved by a
majority vote in the M5S network by the subscribers to the M5S by 30/06/2013 residing in the jurisdiction in which the
Member was elected.”
Once again it is proposed exclusively to the registered members to platform before 31 December
2012, so the voters that actually chose the European MPs are excluded, both from claiming the
recall itself and voting on it. However, the online voting is extended to subcribers registered before
30 June 2013. That seems to mean that not every subscriber has the same weight and it seems that
only people registered by the end of 2012 have a full enjoyment of voting rights. Also, it should be
67 House of Commons, Political and Constitutional Reform Committee, Recall of MPs, First Report of Session 201213, London, 2012, p. 1.
68 House of Commons, Recall of MPs, supra, n. 68, p. 13.
69 R. Weinstein, You're Fired!, the Voters' Version of "The Apprentice": An Analysis of Local Recall Elections in
California, 15 S. Cal. Interdis. L.J. 131 (2005), p. 138.
70 R. Weinstein, note n. 69, p. 138-139.
71 http://www.beppegrillo.it/movimento/codice_comportamento_europee.php
11
noted that only 500 subscribers residing in the constituency can claim the “recall” procedure. It is a
very small number, related to the voters, that could increase the uncertainty of the MP's political
activity, subjecting him or her to undue pressure.
An effective implementation of this model in Italian system may bring about an improvement from
the debate on accountability of elected officials and avoiding the fragmentation and confusion of the
debate about politicians' responsabilities typical of the M5S online experience through social
network such as MPs and other elected officials' Facebook and Twitter accounts or Beppegrillo.it
blog itself. However, the M5S proposal is using the term “recall” but without it substance and
limiting it to its own system.
5. Critical issues about M5S online voting model: the “Parlamentarie” case.
The M5S online voting model could be also discussed through the “Parlamentarie” which took
place in December 2012. In that case, certified subscribers voted to chose names and position of
senators and deputies candidates in the electoral rolls of February 2013 general elections. The
limited number of participants is a constant argument with regard to discussions on M5S. This
experience might be very interesting because it is strictly connected to the practical view of
prohibition of the binding mandate and the realization of the collective online voting process. The
“Parlamentarie” were put in place throught the Beppegrillo.it online application. The majority of
criticisms made by public opinion and political commentators concerned both the neutrality
problems of the platform and the small number of the voters. Related to the first point, observers
said that the final voting results seemed to be missing a third and neutral certification. In fact, from
a technical point there were no checks on the neutrality on the operating systems and security
measures. On the second point, as already seen, criticisms for senators expulsions concern vote
pondering and the consequent lack of proportionality; rather, the choice of the name and the
position of candidates stresses that it is completely closed to outsiders, turning the rest of the
electorate in passive spectators. On the background of this issue, there is a strong contradiction to
resolve. It primaraly concerns the conflict between participation, (and then opening to the widest
possible contributions also from outside of the activist groups, as it characterized the origins of VDays), and the preservation of identity, to prevent a "hostile takeover", which justifies the restriction
of participants in the online voting. The numbers speak clearly: certified subscribers to the site were
255,339, yet. Only 31,612 of them were enrolled and “certified” by 30 September 201272. Just
12,38% of the subscribers had the right to express their preferences, and among them only 20,252
72 http://www.beppegrillo.it/2012/12/le_buffonarie.html#commenti
12
voted for the list composition, while Italian electorate overall is made of by 50,449,979 voters73.
It is a very strong ideological question, a paradox in a political party which wanted to open
institutions to citizens like "tuna cans74" because at this point, those who control which people can
or cannot be part of M5S through certification takes power over the same M5S. It is has been
attempted to give a solution to this issue through extension of certification to all elements: the
certification of candidates, of voters, of members and so on. But the very idea of political
participation, an essential of freedom, compared to the same prohibition of a binding mandate,
appears to be oriented to the underlying logic of the private trademark law. In fact, in this sense, this
is the big issues about Beppe Grillo's ownership of the M5S trademark used as political symbol.
Continuing along this path of interpretation is likely to privatize the whole relationship between
elected political symbol (M5S) and the reference entity (Beppe Grillo) and the electoral body, the
extreme problems related to a binding mandate, in a direction which could escape from the same
M5S promoters and participants.
6. Direct democracy, social networks and online participation
Political debate among M5S supporters, critics, and MPs has been developed on social network
such as Facebook and Twitter, especially on political representatives' personal pages provoking its
extreme fragmentation. This circumstance is encouraged by the use of massive social network by
M5S activists. For example, it is mandatory for those who want to participate in the processes of
selection of candidates, for instance, to make a video presentation of themselves, to manage their
own Facebook page and so on. However, such strong support to the use of social networks causes
the paradoxical effect of making a division between people whose opinion might affect political
action, because certified before a certain date on the platform, and those who must be limited to
expressing their role as passive spectators through the comments. It is well-known that both O. S
and social networks are privately owned, so several M5S activist groups at local level suggested to
turn their experiences on “Liquidfeedback”. According to Wikipedia,
LiquidFeedback (abbreviated lqfb) is a free software for political opinion formation and decision making, combining
aspects of representative and direct democracy. Its most important feature is the implementation of a delegated voting
system ("Liquid Democracy") which is to establish a new form of political representation and participation that takes
into account the knowledge disparity of its participants 75.
73 http://www.agi.it/politica/elezioni-politiche-2013/elezioni-in-cifre/201302221902-pol-rt10270elezioni_50_4_milioni_i_votanti_tra_italia_ed_estero
74 https://twitter.com/beppe_grillo/status/312540417642098689
75 http://en.wikipedia.org/wiki/LiquidFeedback
13
However, the LQFB solution was not accepted by M5S, who preferred to use its specific application
emphasizing its proprietary strategy. This kind of choice would seem to confirm the M5S
propensity for “audience democracy”, as described by Bernard Manin 76 and emphasized through
Internet use. In this model, political parties concede wide space and opportunities to personalization
and communication that, in whichever way made, take over traditional parties organization. The
consequences are that on the one hand collective entities, such as parties, which are the traditional
garantors of participation, are weakened. On the other hand the relationships among political party,
civil society and voters pass almost exclusively through the media and political marketing 77. Often,
public debate on the Internet does not seem to favor mediation between different political views and
contrasting interests. Indeed, the creation of web groups connected on ties of kinship between
“friend” and hostility against “common enemies” is stronger than in the traditional political circuits.
It reduces the chances of finding meeting points between opposing sides and could wide fractures
still existing in communities. These circumstances favored the tendency to “take sides” based on
advertising slogans rather than to establish a weighted dialogue 78. Through the analysis of how
political debate takes place out of the Parliament it is understable how essential is the "equal
representation of each vote" 79, and that each vote is free and independent from its political electoral
source.
7. The formal commitment for candidates and elected officials to the European Parliament.
Among the several new rules that candidates and elected representatives at the European Parliament
must sign for being enrolled in the M5S electoral lists 80, there is a particularly critical one about the
breaching of the code of conduct, in violation of the prohibition of binding mandate
Before the election, each candidate of the M5S to the European Parliament must sign a formal commitment to comply
with this code of conduct, specifically undertaking the commitment to resign as deputy and both in case of conviction
and cases where it is judged to be in serious breach of the code of conduct and respect. If found in breach he or she
must pay the amount of € 250,000 to the M5S European Election Organizing Committee who will donate it to charity .
This kind of commitment is not enforceable because of the well-know prohibition of binding
76 B. Manin, The Principles of Representative Government, Cambridge – New York, 1997, p. 220.
77 F. Gallo, Democrazia 2.0. La Costituzione, i cittadini e la partecipazione, 2013,
http://www.cortecostituzionale.it/documenti/convegni_seminari/20130915_Gallo.pdf, p. 3.
78 F. Gallo, supra, n. 77.
79 N. Zanon, La seconda giovinezza dell'art. 67 della Costituzione, 2014, p. 1.
http://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/giurisprudenza/2014/0007_nota_1_2014
_zanon.pdf
80 http://www.beppegrillo.it/movimento/codice_comportamento_europee.php
14
mandate granted by Article 67 of the Italian Constitution and it is null and void according to EU
law. Indeed, Wheras No. 4 81, Article No. 2 and Article No. 3 of the Decision of the European
Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament
(2005/684/EC, Euratom) 82. Specifically, Article 2 states that “1. Members shall be free and
independent. 2. Agreements concerning the resignation from office of a Member before or at the end
of a parliamentary term shall be null and void”; and Article 3 affirms that: “1.Members shall vote
on an individual and personal basis. They shall not be bound by any instructions and shall not
receive a binding mandate. 2.Agreements concerning the way in which the mandate is to be
exercised shall be null and void”.
Furthermore, in this invalid clause of the M5S code of conduct there are two elements allowing to
confirm the private nature of the political relationship founded between M5S and its representatives.
They are the signing of the penalty clause of €250,000 and the specification of the intention to
donate the funds that may be collected to an unspecified charity. Even if they are not legally
enforceable and according to a mere political view, both of these statements have a symbolic value
and represent the price for the breach of the prohibition of the binding mandate and of freedom of
the MP's choices, denying the essence of the freedom of the mandate and establishing a possible
political servitude. Indeed, while this rule is not enforceable in front of courts or the EU Parliament,
it has a very stong persuasion for M5S subscribers, so that the real sanction on M5S MP could be to
lose face among the community. This is sufficient to limit his or her freedom.
8. Conclusions
Scholars suggest that the M5S critical proposal of the prohibition of binding mandate makes a
revival of the “pioneer days of its birth in the continental Europe during that pluriennial workshop
of Constitutional Law established in France between 1789 and 1793” 83. However, the M5S model
goes beyond the conceptual critique of Article 67 of Italian Constitution because it proposes to
change the model of the popular sovereignty exercise. Indeed, Article 1, §2 of the Italian
Constitution affirms that “Sovereignty belongs to the people and is exercised by the people in the
forms and within the limits of the Constitution”, but the idea of M5S is to move this exercise to the
“Internet”, specifically to its idea of Internet, which identified Internet itself with M5S certified
81 It states that: “The freedom and independence of Members, which are enshrined in Article 2 and which are not
mentioned in any provision of primary law, should receive statutory protection. Undertakings made by Members to
relinquish their office at a given time, or declarations of their intent to relinquish office on an unspecified date,
which political parties can make use of at their discretion, should be considered as incompatible with Members'
freedom and independence and should therefore not be binding in law.”
82 Official Journal of the European Union, L 262, 07 October 2005.
83 N. Zanon, supra n. 79.
15
subscribers, for whom elected officers are spokepersons. For those who so strictly refer to the
Jacobin tradition, also assuming the attribute of "citizens" to indicate the MPs, the concept of
"representation" is almost inadmissible. In fact, the M5S approach rejects the very idea of
"representation", that means "giving presence to those who are absent” 84, and the notion of
decision-making in the name and on behalf of the people represented, as the result of the
independent evaluation of the representative. The revolutionary sans-culottes participation during
the sessions of the French Revolutionary Convention are replaced in modern form by flash-mobs,
plenary meetings, streaming, through the “web people” exercise their constant control and with a
“online click” approve and support or contradict and delegitimize 85. Indeed, digital democracy,
rather than representative democracy, should require the abolition of the prohibition of binding
mandate as the “cornerstone 86,” of the Italian constitutional system. Furthermore, the M5S theory
on the political mandate is certainly compatible with Internet, but it is “surely incompatible” 87 with
the representative parliamentary model.
Lifting the prohibition of binding mandate intentionally could solve the issue of corruption and
irresponsible behaviour of politicians. However, it is related to a social and cultural acceptance by
the whole of the electorate itself and it can not be solved by the cancellation of a relevant
constitutional guarantee. Politicians to whom voters rely on for their representation, are called upon
to represent a society in which voters believed 88, because planning of present and future time is the
goal of the elected politic officials.
Thus, there is a high risk of transforming the means into the ends. In other words, by using
technological instruments to reach certain objectives, politicians tend to impose their own choices
onto citizenship while adopting an apparently neutral technique.
84
85
86
87
88
N. Zanon, supra n. 79.
N. Zanon, supra n. 79.
F. Gallo, supra n. 77.
F. Gallo, supra n. 77.
G. Zagrebelsky, supra n. 62, p. 77.
16

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