Who watches the watchers?

Acting as the chairman of the Superior Council of the Magistrature (CSM), yesterday evening the head of State Sergio Mattarella called a by-election to replace the two councilors (Antonio Lepre and Sergio Spina) who resigned following the unprecedented institutional crisis that ran over the self-governing body of the judiciary. Mattarella’s decision came after a long silence and at the end of a day marked by strong political pressures for the immediate reset of the CSM leadership, a solution dictated by the need to restore its prestige and independence, but which would have also led to automatic re-election of CSM members with current criteria.

The replacement of the outgoing councilors is instead the first step with which the head of State intends to ferry the CSM out of recent weeks’ storm, waiting for a reform of its electoral procedures to give it back prestige and credibility. The self-governing body of the judiciary is in fact an indispensable pillar for maintaining the system balance between the powers of the State. CSM is guaranteed by the Republican Constitution, it has considerable power and is confirmed by decades of political-institutional practice. Therefore, the parallels with the nationwide judicial investigation into political corruption held in Italy during the 1990s are not surprising: the probe seems to have teared the veil that has enveloped the top of the Italian judicial system for decades and in particular its main organ. At this point, however, the danger is that behind the screen of self-government and autonomy of the judiciary– guaranteed by the Constitution – lies a fatally infirm system.

The implications of the investigation on Luca Palamara, a former CSM member and former president of the National Magistrates association, are indeed worrying. Palamara would have gotten money and gifts to influence sentences before working to condition the appointment of the prosecutor of Perugia once he became aware of the investigation against himself, so that he could count on a friendly figure in charge of the magistrates who were investigating of him. To do this he would have approached Luca Lotti, a former Democratic Party minister and prominent figure within Matteo Renzi’s inner circle, and then Cosimo Ferri, former undersecretary of Justice in the Letta, Renzi and Gentiloni cabinets. The investigators’ wiretaps would then have involved several other CSM members, causing three of them to resign and two others to be suspended, going as far as to evoke a mysterious source within the Quirinale presidential palace protecting Palamara. Quis custodiet ipsos custodes? wrote in his Satires the Latin poet Juvenal, anticipating by about two millennia the main political problem of the current judicial scandal.

That is: who will oversee the overseers themselves if the system is in fact powerless in the face of the self-government principle of the judiciary? Unless politics take responsibility for a radical reform of justice – with all the risks involved, given the danger of prevarication of legislative and executive power over the judiciary – it will be the magistrates themselves who will decide how and when to address the problem. The role of Sergio Mattarella, an impartial link between the three powers of the State, will be crucial.