The 5 Star Movement's use and abuse of direct democracy and the Italian constitution

Ministerial immunity put to the test of the web 

The background
On Tuesday, the Italian Senate committee tasked with advising the Senate on the lifting of immunities on the basis of Article 96 of the Italian constitution, voted to block an investigation against Deputy Prime Minister Matteo Salvini over his decision to hold over 150 migrants on board a ship for five days. The committee voted 16 to 6 to stop the investigation into Salvini, who is also Interior Minister and the leader of the far-right League party which currently rules in a coalition with the anti-establishment 5-Star Movement.

Prosecutors in Sicily are investigating Mr Salvini on grounds of kidnapping, for preventing a boat of migrants on a coast guard vessel from entering the country in August last year. As a Minister, Mr Salvini is subject to the ordinary course of justice, provided that the Senate authorizes his prosecution, which requires a majority. With the opposition voting in favor and Mr Salvini’s own League party voting against, the balance could be tilted only with the support of his coalition partner, the anti-establishment 5 Star Movement, which currently holds 107 of the 320 seats in the Senate.

The legal issues
As a Senator, Mr Salvini enjoys parliamentary immunity pursuant to Article 68 of the Italian Constitution, under which he cannot be held accountable for opinions expressed or votes cast in the exercise of his functions. Beyond that, only prosecutorial measures as far-reaching as monitoring of his communications or his arrest are prohibited without the Senate’s consent, while criminal prosecution otherwise remains possible. However, Article 96 of the Constitution in conjunction with Article 5 of the Constitutional Act of 16 January 1989 provides an additional layer of protection specifically for members of the Council of Ministers, whose prosecution must be authorized by a majority in the parliamentary chamber of which the minister in question is a member, or, if he is not a parliamentarian, by a majority in the Senate. Accordingly, Mr Salvini’s prosecution may only proceed in authorized by the Senate.

Whether the Senate will authorize Salvini’s prosecution critically depends on the support of the Senators of the 5 Star Movement, League’s coalition partner. Before the decisive vote on the floor of the Senate, which is yet to be held, the question whether to grant the Sicilian prosecutors’ request for authorization was put before the Committee on Elections and Parliamentary Immunities, which voted against granting the request.

In line with the tradition of the 5 Star Movement, the party leaders had decided to defer the decision to an internet vote to be cast through the Movement’s online platform. After sketching the background of the investigation, the question was posed in the following terms:

Did the delay in the disembarking operations of the Diciotti boat in order to re-distribute the migrants in the European countries occur in order to protect a State interest?

- Yes, so the immunity is not to be lifted
- No, so the immunity is to be lifted

Of the roughly 52.000 participants in the online poll, almost 60% voted “yes” – thus against granting the authorization to prosecute, prompting the 5 Star Movement Senators on the committee to vote accordingly. The vote on the floor of the Senate is expected yield a similar result.

This course of events gives rise to a number of interesting – and concerning - issues:

1. A people’s court?
​Article 96 of the Constitution and its elaboration in the Constitutional Act of 1989 do not make it the task of the Senate to pass criminal judgment on the Acts of a minister. In fact, the wording of the Constitution – “[members of the council of ministers…] are subject to normal justice for crimes committed in the exercise of their duties, provided authorization is given […]” – makes it very clear that this is the domain of the judiciary. Immunities, parliamentary or ministerial, are merely put in place as a procedural barrier with the aim of barring politically motivated legal action against state office holders and, in doing to, to protect the office itself, rather than its occupant or their political agenda. However, the way in which the 5 Star Movement phrased this question to its followers obfuscated the meaning of Article 96 and grossly overstated the role of the Senate’s vote on the prosecutor’s request.

While the expediency and desirability of direct democracy elements in parties’ internal decision-making on matters of policy may be debated, 5 Star Movement evidently did more than create a ‘feedback loop’ between its Senators and its voters. It gave its virtual – and, in the light of Article 96, unconstitutional! – “people’s court” a task that wasn’t the Senate’s in the first place: to rule on Salvini’s acts on their merits.

2. Is the state’s interest of interest?
Instead of the procedural question whether the public prosecutor of Catania should be allowed to investigate, 5 Star Movement’s online rank and file were asked whether delaying the disembarkation of migrants was in Italy’s “interest”. Even if one thinks positively of the Movement’s practice of leaving political decisions to the party base, the problem remains that the underlying question of Salvini’s criminal responsibility isn’t a political but a judicial question. To distort the difference between the two, i.e. to subordinate the question whether a Minister’s decision is criminal to that whether it is desirable, is an affront to the rule of law.

3. A matter of facts?
Not unimportantly, the part of the site which sketched the background of the investigation contained a number of factual mistakes: 137 migrants are mentioned but they were in fact 177, and the document mentions a Committee “per le autorizzazioni a procedere”, while the actual name of the Senate Committee is “Giunta delle elezioni e delle immunità parlamentari”. While these differences may not have influenced the voters’ behavior, it casts some doubts on the accuracy of the party’s examination of the relevant facts before they were put to the vote of the people.

In conclusion, this episode shows a trend towards an abuse of the tool of direct democracy, which creates a worrisome vulnus to the Italian constitutional set up and the principle of the rule of law.