Salvini before the courts: judges against democracy?

Anne-Marie Le Pourhiet is a professor of public law at Rennes-I University and vice-president of the French Association of Constitutional Law.

FIGAROVOX.- The Italian Senate, following a request from a court in Catania, has decided to refer Matteo Salvini to justice for the kidnapping of migrants , who blocked a migrant boat off Sicily when he was Minister of the Interior. However, such measures to limit illegal immigration are supported by a majority of Italians. Does this decision reveal a reversal of the law against the general will?

Anne-Marie LE POURHIET: That is saying a lot. If it were an administrative dispute tending to admit the responsibility of the Italian State for fault resulting from the violation of international humanitarian law or European standards, one could speak of a conflict between democracy and the law. But here, these are criminal proceedings against the person of a former Minister of the Interior (and Vice-President of the Council) instituted on the basis of the Italian Criminal Code for "abuse of power and forcible confinement of persons" , which is whimsical to say the least. It is all the more astonishing that a decree-law (equivalent to French ordinances) adopted in June 2019 by the Conte government had rightly strengthened the powers of the Minister of the Interior to refuse the entry of migrant ships in the Italian ports. It is not the first nor the last procedure of this type initiated by Sicilian prosecutors against Matteo Salvini. What changes is that, thanks to the overthrow of a political coalition operated last summer, the Senate this time lifted immunity, in a perfectly comical reversal worthy of the commedia dell'arte where we sees "Five-star" parliamentarians vote exactly in February the opposite of what they had voted in March to let go of the vice-president of the government they supported yesterday.

We are more here faced with a phenomenon of militant prosecutors who operate against the backdrop of incoherent political quarrels. It is also not known whether there are NGOs behind the criminal proceedings of the Catania prosecution, but it is quite likely, knowing that Salvini is obviously the bane of pro-migrant activists.

Are these pressures particularly strong on the migration issue? We remember the Marrakesh Pact which presented migration as "factors of prosperity, innovation and sustainable development" . More recently, a college of experts has given Emmanuel Macron and the government a report calling for amending a migration policy deemed too restrictive ...

There is obviously a very strong ideological pressure in Europe, directed against the Wesphalian model of Nation-State and against the protection which it supposes of the sovereignty and the national borders. The " values " of the European Union enshrined in Article 2 of the Treaty impose on us " tolerance ", respect for human rights " including the rights of persons belonging to minorities " and above all the essential " non-discrimination ”conceived as an abolition of all distinctions and hierarchies, starting with those which separate the national from the foreigner.

The European Parliament report of 4 July 2018 calling for the opening of sanctions proceedings against Hungary for violating the Union's " values " contains three pages devoted to " Fundamental rights of migrants, asylum seekers and refugees " in question in particular the Hungarian legislator who would not be sufficiently welcoming neither for the migrants nor for the NGOs which support them. As if by chance, just two days after the publication of the Sargentini report, the French Constitutional Council censored a legislative provision repressing aid to illegal migrants in the name of a principle of universal brotherhood out of nowhere but resembling like two drops of water to the dominant frontierism in the European institutions and in the NGOs which influence them.

This rise in power of the jurisdictional power obviously responds to an import logic. Where does it come from historically?

It is above all of Anglo-Saxon origin because the common law has always given pride of place to case law while Roman law more permeates continental law. But it is obviously European construction that has become the driving force behind this government of judges since it is on their servility that the system of primacy of European standards over national law entirely rests. However, these European standards precisely convey the hyper-individualistic North American multicultural model. This is why Hungary and Poland, in particular, are in the crosshairs of the Union over the status and composition of their superior courts. The European Commission fears that the Polish or Hungarian authorities will appoint judges who are not in favor of European standards.

Worse, it is the very constitutions of these States, that is to say their sovereign fundamental laws, which are criticized and accused of not corresponding to the " values " of the Union. The Sargentini report thus criticizes the Hungarian Constitution for retaining, among other abominations, an " obsolete conception of the family ". For its part, France was entitled, in 2008, to a hallucinating report by the "independent expert" of the UN Human Rights Council, Ms. Gay McDougall, nailing the French republican model judged insufficiently favorable to the rights of minorities and enjoining us to modify the Constitution or at least its interpretation! State sovereignty and the self-determination of their peoples no longer exist for NGOs and the supranational institutions they manipulate.

How does this development reverse the French historical model?

In France, the French Revolution, in the continuity of the monarchs of the Ancien Régime, firmly prohibited judges from interfering in the exercise of legislative and executive powers. The judge, in our country, must be the simple "mouth of the law", itself voted by the citizens or their representatives, who applies it faithfully and objectively in litigation. The law of August 16 and 27, 1790 provides: "The courts may neither directly nor indirectly take part in the exercise of legislative power, nor prevent or suspend the execution of decrees of the legislative body sanctioned by the King, hardly of forfeiture ” . This was, of course, to prevent aristocratic courts, deemed reactionary, to oppose the application of the law "expression of the general will" in a new regime that wanted to be democratic. The Criminal Code of 1810 even punishes the magistrate for civic degradation who has suspended the execution of a law.

When we see today our judges, national and European, spend their time dismissing French laws on the grounds that their application would, according to their entirely subjective assessment, disproportionately infringe on individual "rights", in particular those of migrants, we can see the vertiginous reversal accomplished since the 18th century. Contrary to what is generally asserted, this government of judges is poles apart from the concept of the rule of law as it was conceived by German jurists of the 19th century who wanted, on the contrary, to eliminate the arbitrariness of judges and officials.