Third term, the history lesson of the Consulta

Although largely predictable, the ruling by which the Constitutional Court declared illegitimate the Campania regional law that would have allowed the current president De Luca to run for office a third time deserves particular attention: for the present but also and above all for the future. It does justice - hopefully once and for all - to the illogical argument according to which, just as for parliamentarians and regional councilors, citizens would have the right to elect Presidents of the Region and Mayors as many times as they want.

As if it were not obvious to everyone that these people, due to the power they concentrate in their hands, cannot be compared to members of a legislative assembly. And when such power persists for too long, there is the risk that it consolidates to such an extent that it leads to temptation, as demonstrated by the Formigoni and Galan cases, both Presidents of their respective regions for three terms (1995-2010). It is no coincidence that, on a comparative level, in democracies in which the top executive power is directly elected by the voters (such as the Presidents of the Regions or the Mayors) there is always a ban on a third term, sometimes absolute ( United States ), sometimes consecutive ( France ). Just as it is no coincidence that the abrogation of the limit on double mandates has always been the warning light that has signalled the involution of the political regime towards authoritarianism.

This is what happened: in Venezuela in 2009 to allow Chavez to be re-elected; in Nicaragua in 2014 to re-elect Ortega; in Russia in 2020 where Putin 's previous mandates were cancelled to allow him to remain in office until 2036; in El Salvador in 2024 in favor of Bukele; in Egypt (2019) to allow al-Sisi to remain in office until 2030 and, last but not least, in China in 2018 to allow Xi Jinping to serve a third term. The danger of authoritarian involution can be glimpsed in Trump and Erdogan's intentions to abrogate, if not even not respect, the constitutional ban on a third term. As stated by the Constitutional Court, the ban on third mandates, even if placed at a legislative rather than constitutional level, is by its nature a fundamental democratic principle in electoral matters, as such mandatory and, therefore, immediately applicable to all Regions, even in the absence of its express implementation, especially in the Campania region which in 2009 had approved its own electoral law without introducing any derogation.

In fact, it is intended to counterbalance the significant political power that those elected to the top of regional or municipal executives receive directly from the voters. It is therefore a "considered counterbalance " that acts as a "system temperament " with which the state legislator has identified the point of balance between direct election of the executive and the consequent concentration of power in the hands of a single person. This prohibition is ultimately rooted in the principle established in the first article of our Constitution according to which sovereignty belongs to the people but they must exercise it in the forms and within the limits provided for therein. It is not a question - the constitutional judges appropriately specify - of government structure. It is a question of democracy because it is a question of avoiding that the lack of rotation in the office of president of the Region causes forms of stratification and consolidation of the system of power that end up damaging the effective equality of opportunity among candidates, the freedom of vote of voters, correct electoral competition, the necessary physiological turnover of political representation; in short, in a single word, the democracy of regions and local authorities.

If this is the case, that is, if we are faced with an inescapable fundamental principle, the Government would do well to draw the necessary conclusions, moreover in coherence with its own reform project on the so-called premiership which precisely provides for the prohibition of a third term for the Prime Minister elected directly by the voters. The Government, therefore, should challenge the recent law of the Autonomous Province of Trento which, leveraging special autonomy, would like to allow the third mandate. Special autonomy that cannot be invoked when it comes to establishing who can be a candidate (so-called passive electorate), as the Constitutional Court itself clarified (60/2023) by censuring the Sardinian electoral law that would have wanted to allow the third mandate of Mayors in that region.

If this were not the case, we would fall back into the suspicion that the Government challenges regional laws according to the political convenience of the moment rather than for reasons of law, based on the famous Italian motto according to which laws are applied to enemies and interpreted for friends. In fact – and here De Luca is right – two other Regions ( Veneto in 2012 and Piedmont in 2023) have approved regional laws that respectively allowed and would allow the President of the Region a third mandate, without them having been challenged by the Government of the time. An evident and unreasonable disparity of treatment, which however – the Court specifies in conclusion – anyone (first of all a candidate defeated by the outgoing President of the Region who ran for the third time) could remedy by raising the question of unconstitutionality not directly (as the Government can do) but incidentally before a judge. An appeal that is sure to be successful, because the law on who can be elected must be the same for everyone and throughout the national territory.

FROM

Salvatore Curreri