Title: Direct democracy and the prohibition of the binding mandate: the Italian debate

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1 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), 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 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 28 th March N. Genga, Movimento 5 Stelle, primo partito e vincitore morale, in Federalismi, 5 March 2013, 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 January 2014, para T. Muller, Beppe's Inferno, The New Yorker, February, Meetup (TM) is the social network whose use was suggested by Beppe Grillo himself for coordinating local politic 1

2 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 in Bologna, in Turin and 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 activities According to Beppe Grillo's Blog, there are 1314 groups with 163, 194 members in 23 countries (source last visited 23 February 2014). 5 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 6 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 7 Grillo used the rally for announcing the partitipation of the M5S to the 2014 Election to the European Parliament. 8 T. Muller, Beppe's Inferno, supra n.3. 9 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 , p It was related to the civic lists of Treviso, Firenze, Prato, Bologna, Fano, Roma, Torino, Pescara, Perugia, Bergamo, Nettuno, Spoleto, Forlì, Pozzuoli, Fiumicino. 11 It was written in the Carta di Firenze (Florence Charter), J. Bartlett, C. Froio, M. Littler, D. McDonnell, New political actors in Europe : Beppe Grillo and the M5S, London, Demos, 2013, S&ms=N Parma as well as Sarego (Vicenza), Comacchio e Mira (Ferrara) 2

3 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 E. Povoledo, Caustic Comedian Alters Italy s Political Map, New York Times, May , 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 A. Sajó, Limiting Government: An Introduction to Constitutionalism, Central European University Press, Budapest, 1999, p A. Levico, Vota X. Storia di un segno, Araba Fenice, Boves, 2009, p A. Levico, Vota X, supra n. 21, p G. Azzariti, supra, n

4 public officials towards the sovereign people with his famous speech On the constitution and representative government of May 10, 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 and On the first point there is a 24 G. Azzariti, supra, n 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, 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 A. Levico, supra n. 21,p 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 U. Bacchi, Silvio Berlusconi 'Gave 3m Bribe to Rival Politician Sergio De Gregorio', International Business Times, , N. Squires, Silvio 4

5 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 Italy 36, or participatory democracy 37. 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, , 31 M. Ainis, Corrotti e corruttori, La Stampa, , HcY5GA1EGlaCUkE2mt5xSM/pagina.html; M. Guerzoni, Cambi di partito, la Procura apre un'inchiesta, Corriere della Sera, , 32 Corte Cost No 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, 34 Sul punto si veda E. Greblo, La filosofia di Beppe Grillo. Il movimento 5 stelle, Milano Udine, 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 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

6 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 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 (2012). 39 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). 40 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 41 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) 42 C. M. Burnett, M. D. McCubbins, Sex and the Ballot Box: Perception of Ballot Measures Regarding Same-Sex Marriage and Abortion in California, 2012, G. B. Lewis, G. W. Gossett, Why Did Californians Pass Proposition 8?, 2009, 43 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 U. Allegretti, La democrazia partecipativa in Italia e in Europa, Rivista dell'associazione Italiana dei Costituzionalisti, 2011, n. 1, pp U. Allegretti, supra n

7 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, , 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,

8 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, 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 Two of them in 2013 (N. Barone, La rete conferma l'espulsione di Gambaro, Il Sole 24 Ore, June 20, 2013, shtml?uuid=AbPNOc6H) and the last four on February (A. Marini, Espulsi i dissidenti, M5S nel caos, Sole 24 Ore, February 27, 2014, 8

9 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 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 dignity 60 of the Parliament and of the MPs themselves. According to Article 67 of the Italian Constitution, the 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> hanno votato per ratificare la delibera di espulsione hanno votato contro. Grazie a tutti coloro che hanno partecipato</p> Beppe Grillo <a href="https://twitter.com/beppe_grillo/statuses/ ">february 26, 2014</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script> na.html. 58 A. S. Sweet, J. Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat'l L. 72, (2008), p G. Mumelter, Psicodramma a cinque stelle, Internazionale, February 27, 2014, 60 A. Ruggeri, Appunti per uno studio sulla dignità dell'uomo, secondo diritto costituzionale, Rivista dell'associazione dei Costituzionalisti, 2011, 1, p

10 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 history 65 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, 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 G. Zagrebelsky, supra, n F. Feeney, The 2003 California Gubernatorial Recall, 41 Creighton L. Rev. 37, (2007), p T. Zick, The Consent of the Governed: Recall of United States Senators, 103 Dick. L. Rev. 567, (1999), p 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

11 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 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 , London, 2012, p House of Commons, Recall of MPs, supra, n. 68, p 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 R. Weinstein, note n. 69, p

12 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 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 V- Days), 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 Just 12,38% of the subscribers had the right to express their preferences, and among them only 20,

13 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 elezioni_50_4_milioni_i_votanti_tra_italia_ed_estero 74 https://twitter.com/beppe_grillo/status/

14 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 F. Gallo, Democrazia 2.0. La Costituzione, i cittadini e la partecipazione, 2013, p F. Gallo, supra, n N. Zanon, La seconda giovinezza dell'art. 67 della Costituzione, 2014, p. 1. _zanon.pdf

15 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 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 N. Zanon, supra n

16 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 N. Zanon, supra n N. Zanon, supra n F. Gallo, supra n F. Gallo, supra n G. Zagrebelsky, supra n. 62, p

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