Commentary
The Salvini case, the government and the return of lese majeste
What is most troubling is that they’re not even trying to refute the accusation made against the minister on the merits, but denying its legitimacy altogether.
The trial of Minister Salvini in Palermo is an affair with a much deeper significance than the specifics of the particular case, striking as they are: the fundamental principles of the rule of law are at stake, and it concerns the essence (or, better put, the existence) of limits to power.
The unseemly reactions to the prosecution’s indictment are proof enough. They don’t question the reconstruction of the facts and the alleged violations of the law; instead, they categorically state that judges must not go any further in the face of power. According to the Prime Minister, “it is unbelievable that a minister would risk six years in prison for doing his job defending the borders.” This implies that a minister could act by any means whatsoever – even in violation of the law – as long as it is in the performance of one’s duties. Thus, it would be permissible to defend the borders even by violating national laws and international laws, and even by committing the crimes of kidnapping and dereliction of duty.
But this means making the rule of law subservient to political decisions. On the contrary, Article 96 of the Italian Constitution expressly provides that “The President of the Council of Ministers and the ministers, even if not in office any longer, are subject to ordinary courts for offences committed in the exercise of their functions, provided authorization is granted by the Senate of the Republic or by the Chamber of Deputies.” In our case, that authorization was granted on July 30, 2020, thus refuting the claim that the ongoing investigation has the nature of a “persecution.”
What is most troubling is that they’re not even trying to refute the accusation made against the minister on the merits, but denying its legitimacy altogether. We will see what the minister's defense will argue, and how, in the hope that they won’t merely claim the supreme prerogative of power, but will make an effort to exercise their right of defense, countering the investigating magistrates' reconstruction on the facts. That won’t be an easy task, because the international regulations seem clear enough and the violations rather obvious, but this is what the outcome of the trial and the public's own judgment should be based on. Not on anything else.
On the other hand, the fact that Salvini's tenure as Interior Minister was a particularly nonchalant one, with little concern for the fundamental rights of migrant people and unbalanced towards soothing securitarian anxieties, has been definitively ascertained by now, I believe – including in the courts. It is enough to mention the cases involving the Sea-Watch 3 ship, and in particular the case of Carola Rackete, who was arrested by the Italian authorities for violating the provisions of the government of the time (an ad hoc decree-law) and for allegedly aiding and abetting illegal immigration, but released by the court soon afterwards, which ruled that international law and the obligations arising from respecting the law of the sea prevailed – as they must. Thus, the courts sanctioned the victory of the rule of law over the abuse of power.
By contrast, the reactions of the current political majority seem to be inclined towards the principle of lese majeste: it is not allowed to put the political direction of a government on trial. They say those prosecutors who investigate the conduct of heads of ministries are abusing their power, since the latter always operate with political ends that must remain out of the purview the judiciary, whatever they may be (in our case, the “defense of the borders”). But they forget that under no circumstances can government bodies operate in violation of the Constitution or international commitments, to which the existing branches of powers must also conform.
If a kidnapping occurred, if a port for landing needed to be provided and this was improperly denied, if the fundamental rights of the people involved were not protected, jeopardizing their security (not the country’s security), it is right that even a minister must be convicted for such crimes by an Italian court. But this can only be decided by the competent judge, not the prosecution, not the government, and not even public opinion. Moreover, in any case, the other stages of the legal process will follow.
The minister can rest assured: he is not being persecuted, and will have plenty of other venues in which he can try to make his case.
What would be unacceptable, however, is trying to influence the outcome of the trial, which risks compromising the constitutional principle of the autonomy and independence of the judiciary from any other power. And it is here that we must touch on another delicate aspect of the affair at hand. Generally speaking, it cannot be denied that anyone can give support to whomever they want; one can also express any kind of opinion on the merits of the work of the prosecutors, even the most out-of-this-world (see Elon Musk's surreal tweet that he would want to give six-years sentences to the “crazy” judges who dared to question the work of the aforementioned minister). After all, the right to criticism is guaranteed to everyone – indeed, even to imbeciles, as Umberto Eco provocatively reminded us. But the point is that the government must not delegitimize the power of the judiciary. A proper respect for the separation of powers must prevents this. When the Court has the floor, the government must be silent, as must every other branch of power (can you imagine President Matterella commenting on an ongoing trial in an aggravated tone?).
Once again, the intolerance displayed by numerous members of the current government, who have lined up by party affiliation to defend Salvini's behavior, signals a general problem. That is, the intolerance of this majority toward constitutional limits to its actions.
After all, the propensity toward the unification of power underlies the autocratic, anti-pluralistic ideas that also underpin the reforms to the Constitution that they want to introduce – from the separation of the careers of prosecutors and judges to the direct election of a head of government who will have a strong parliamentary majority and a judiciary in tow. There is much to reflect upon here, beyond the particulars of the Salvini case.
Originally published at https://ilmanifesto.it/il-caso-salvini-il-governo-e-il-ritorno-del-delitto-di-lesa-maesta on 2024-09-17