Italy’s Other Crisis

The weak economy is visible to all but there is a parallel crack in the system which is at least as dangerous to the country’s wellbeing and stability and undermines the very structures of the country. It is the clash between the powers of the state; the law on one side and the executive and legislature (usually referred to as la politica) on the other.

Both crises have been a long time brewing. The material hardships are due to a declining economy over the last 20 years combined with an uncontrolled growth of public spending. The crunch came when the waves from the US and then European bubbles hit Italy.

The institutional crisis also goes back a long way; 30 years when Bettino Craxi first bridled at magistrates investigating corruption in his Socialist Party in Genoa; 20 years ago when the Milan magistrates began prosecuting the kickback system used by all the parties. The conflict between “the judges” and la politica has rumbled on since then with occasional squalls; the final storm has now broken and is likely to be a very rough and dangerous one for the ship of state.

The opening lightening was an appeal by President Napolitano to the Constitutional Court. He is asking the Court to declare that the calls made to him by a former minister under investigation (and now charged with perjury) should be destroyed. The former minister is Nicola Mancino (above, with Napolitano) who was Minister of the Interior between 1992 and 1994 when there were secret negotiations between elements of Cosa Nostra and politicians and law enforcement officer apparently to alleviate prison treatment of convicted mafiosi in exchange for stopping the mafia bombs. Mancino is not accused of complicity in the deal but he swore that as minister he knew nothing of the negotiations; this turned out to be untrue, hence his indictment for perjury.

While Palermo prosecutors were preparing their case on these negotiations last year, they obtained judicial permission to intercept Mancino’s phone. He made a number of calls to the Quirinale seeking Napolitano’s intercession in the case. Most of the these calls were to the president’s legal advisor, Loris D’Ambrosio. These have been published and are part of the court records; in them Mancino pleads with D’Ambrosio to ask the President to move his case from one court to another where he thought his position would be improved. D’Ambrosio for the most part stalls (and between the lines, it is clear that he is trying to get Mancino off his own and Napolitano’s backs) but he does give a generic assurance that “the President is looking into the case”.

Later, it came out that Mancino had spoken directly with Napolitano. The Palermo prosecutors have already said that the conversations were not relevant to their case and the recordings would be destroyed as soon as the investigating judge orders it (and after the defence had been heard).

We can only guess that Napolitano reassured Mancino but made no commitment and that Mancino did not admit to any knowledge of the negotiations. The two men have known each other for decades and have been in government together and if an old friend or acquaintance makes an improper request, it is probably brushed aside or ignored politely. Whatever they said, it was irrelevant for the prosecution.

This was not enough for Napolitano who has made a presumably banal albeit embarrassing exchange between two old friends into a constitutional issue which risks tearing apart some of the fundamentals of parliamentary democracy – the separation of powers.
Napolitano is trying to convert his constitutional immunity from prosecution for his presidential functions (normal in most constitutions) into presidential untouchability. If a legitimate telephone tap reachs the President, that call should not even be transcribed and destroyed, he argues.

The only parallel that I can think of is if Governor Blagojevich (of Illinois, who was caught trying to sell President Obama’s vacated senate seat and is now in gaol) had called Obama when his phone was already being tapped. No US court could grant the president inviolability from incoming calls from louche characters.

Instead, in Italy, the media, the judiciary and the political classes are divided. On the one side are Napolitano’s supporters who have introduced a new phrase “judicial populism”. They feel that the prestige of the President has been damaged by the knowledge that the intercepts exist. They do not admit it, but the subtext is once again that anyone in politica (elected members of the legislature or executive), should be protected from any interference of the law.

On the other side are those who can see no constitutional prerogative in the single case and are terrified that if the Constitutional Court decides in favour of the President (both are “Guardians of the Constitution”) this would be a major blow against any judicial monitoring of the political world. In effect making the President into an ancien regime absolute monarch.

Prime Minister Monti weighed into the fray with an interview in the Catholic paper Tempi calling the Mancino-Napolitano intercepts “a grave abuse”. The founder of La Repubblica, veteran journalist Eugenio Scalfari has dedicated his last two Sunday columns to defending presidential prerogative (a position weakened by faulty logic, incorrect data and the possibility that he might be one of the next life senators appointed by the President).

Judges and academic lawyers have defended the Palermo investigators’ procedure.

All the government parties support the president with some of them insinuating a conspiracy of the independent paper Il Fatto Quotidiano, the ex-magistrate Antonio Di Pietro and his Italy of Values (Idv) Party and the Genoese comic Beppe Grillo with his 5 Star Movement (M5S) that allegedly would want to install a government of judges.

The judiciary, once again, complain that the criminal law is only used when politics has gone beyond any reasonable behaviour, in order to clean up the Augean Stables.
Whatever the Court’s verdict (and we will probably have to wait until after Napolitano steps down next year), the Presidency, politics, the Court itself and the whole magistrature will come out looking weakened and somehow sleazy. In the meantime, the thunder rolls and the lightening flashes. This is not the sort of storm Italy needed when facing its economic woes.

The constitutional conflict is the most serious and most abstract part of the spat. At the same time, much more concretely, the Palermo investigations on mafia 20 years ago and today are weakened not only by Napolitano’s appeal but by a combination of inspections and rearrangements of personel, in practice dismantling working police and judicial networks carried out under the veil of everyday bureaucracy.

Even more dangerous is the message which has now been put forward that telephone taps should be further limited. At the moment in Italy (and elsewhere), they are the cheapest and most effective way of investigating almost any form of crime. They are carried out under judicial supervision and with a warrant. Until now, it was mostly Berlusconi and the right which wanted to limit taps – now it is a good part of the left as well and the bill is ready in Parliament and could be passed by Christmas. This would be a body blow not just to investigations into mafia and political corruption but just about any other sort of crime.

Again, not the sort of message to send to a world wondering whether to invest in Italy.