DiReSom

Diritto e Religione nelle Società Multiculturali/ Law and Religion in Multicultural Societies/ Derecho y Religión en las Sociedades Multiculturales/ Droit et Religion dans les Sociétés Multiculturelles/ Recht und Religion in Multikulturellen Gesellschaften/ 多元化社会中的法与宗教 / القانون والدين في المجتمعات متعددة الثقافات

by Domenico Bilotti*  

domenico_bilotti@yahoo.it

It seems commonly recognized that Italy has now overtaken South Korea and the Islamic Republic of Iran considering the deceases and the contagions due to the so called Covid-19 (corona-virus)[1].

It is substantially correct to report this information in a dubitative way because there are some different elements in undoubtedly counting the exact amount of verified infections (the timing for diagnoses, the criteria to declare the ascertained contaminations, the communication between public medical authorities and the governmental agencies in charge[2]).

In South Korea, even inside nationalist Christian and Lutheran groups, largely secularized and well-learnt about the scientific progress, the idea of death is often linked to the inescapable process of life[3] and many early deceases were originally considered among the closest communities as a result of a dangerous spirit or a bad inexplicable illness passing across people and the smallest internal towns – it results even in a very low profile use of pharyngeal tests since the beginning[4].  The same complexity raised about first Southern American and African cases[5]: initially, tribal communities opposed (and they probably still do) diagnostic technologies. Actual circumstances anyhow made the declaration of pandemic by the World Health Organization definitely obligated[6].   

If it is formally deserved that the more incisive measures should be taken by each country, it is likewise obvious that an international epidemic phenomenon inevitably recalls a much deeper level of coordination and cooperation in disciplining border transfers. On the other hand, the States affected by the most unpredicted increase in contagions and deceases need to face the emergency still considering the specific local conditions of propagation and healthcare assistance. A particular focus should be adopted regarding the weakest social parts easily subjected to a more invasive risk of lethal infections. 

In Italy an impressive protest raised in many national prisons with documented events of violent jailbreaks, massive public forces’ reactions, widespread disorder[7]. The prison system in Italy has never shown this level of tension since the period of political turmoil (ending in the first half of the Eighties), when an absolutely various and heterogeneous coalition of political activists, organized crime high and low profile imprisoned and not classified incarcerated people chose to react against a restrictive and perceived inhuman criminal treatment[8]. In these days, the themes of the protest can basically be summarized in two different aspects: the concrete situation of the medical nationwide surveillance and assistance and the rules contained in two consecutive decrees of the President of the Council of Ministers of the Italian Republic[9]. New provisions actually concern many relevant aspects as the regime of the regional mobility in zones classified like “risk areas” or, more simplistically, “red zones”. These administrative orders, although necessary, are generally missing the opportunity to give the national public opinion a cohesive sense of organization and conformity in numerous crucial branches (for instance, the internal regulation of judiciary courts[10]and public schools or similarly a comprehensive program to avoid deliberate violations to the local restrictions[11], by now generalized). 

Many observers have considered that this still not totally clear strategy is an alarming joint negligence of both the public opinion, not enough responsible to respect even widely acceptable limitations, and the political power, so much divided by an undeveloped Parliament majority and a quite opportunistic coarse opposition[12]. It is not properly the case to become involved in mere propagandistic claims about the morality of thoughtless flights to not heavily infected regions and the inner overindulgence in selling out pubs and clubs during a so extreme global condition. At the same time, it seems a crocodile tears consideration to condemn the general division in political parties who have not shown in recent years the unitary and universal identification on defending constitutional principles and common goods[13]. Many cultural, social, religious and associative recreational agencies are fortunately demonstrating a more alert approach in containing the sense of panic and public fear and even more in collaborating to affirm virtuous praxes. We can positively consider a not limited spectrum of useful behaviors: shared grocery shopping, hygienic preventive prophylaxis, joint smart-working, social use of Internet connections to have reunions, meetings and even moments of worship and meditation.      

Rather, from a constitutional point of view, it is very important to analyze models of legal intervention and administrative reforms in order to identify and to eventually adapt a correct institutional process. It is even more relevant to recognize a distinctive contingency that has affected Italy in tackling (or trying to tackle) the “corona-virus case”. Italy is for the moment the first country considering the percentage of mortality after ascertained infections. Biologists, virologists, scientific specialists, have so far excluded a typical and more aggressive mutation of the virus itself; so, it definitely means that the country has demonstrated a list of undervalued criticalities and the overcrowding of prisons is exactly in the same line, although it has not gained – but it could easily gain in the nearest future in default of more balanced provisions – a specific impact on corona-virus contagions. 

The Iranian Republic is a Twelver Shia Islam State[14] and since the Islamic Revolution of 1979 has progressively known an interesting development in criminal law sciences often legislating in the direction of capital punishments as the appropriate penalty to major crimes (maybe a too much expansive list including hypotheses of rape, corruption, homicide, terrorism, foreign drug trade)[15]. The criminal system of the Republic has adopted more recent rules in the last version of the Criminal Code, realized and reassessed by the Guardian Council, but it is not an opinion that those rules still do not seem a liberal body of concessive norms. The main structures of the jailing procedures still yearn for a religious basement and the stigma of some assumed dangerous conducts is however linked to a preliminary Quran condemnation (female adulteries, blasphemy, schismatic religious confraternities)[16]. On 3 January 2020, a US drone strike killed Qasem Soleimani[17], the major general in the Islamic Revolutionary Guard Corps: the deputy most important role in the concrete order of the Iranian Law. Even in a so chaotic internal framework, between numerous and unpublicized political clashes and a tremendous crisis of fair trades also in providing medicines and therapies, Iran has temporally released more than 54.000 prisoners in a comprehensible effort to combat the enormous spread of corona-virus diseases in crowded jails.  Security prisoners sentenced to more than five years will not be let out: a reassurance conceived to avoid a general sense of impunity. 

This effort could obviously fail because the virus is dramatically beating not only the weak masses, the aged population and the already seriously ill categories. 

In Iran a leading figure of the Expediency Council, Mohammad Mirmohammadi, died as a result of an infection and State media did not recognize it as a specific grave symptomatic case. Everyone can die, but the Iranian Republic pointed to the prison overcrowding eventually being an affecting condition to regulate the newest infections. It is not properly an amnesty[18], as we look at it in the tradition of the rule of law[19], but it is certainly a political judgment against the collective harmfulness of a penitentiary promiscuous and over-fulfilled context. The Italian criminal law basement does not have anymore a so identifiable religious root, but it is anyway well accepted that many judiciary institutions have at least a canon law ancient foundation (the concept of legal pardon[20], the structure of the trial[21], the functions and the purposes of the punishment for the declared guilty criminal[22]). The proposal of a general provisory release from prison, strictly modulated around the lowest kinds of misbehaviors, could simultaneously be relevant from a religious-charitable point of view and useful considering the extreme danger of a chronic overcrowding. It is reasonably hopeful that Italy could respectfully study a reformist block of rules concerning the execution of the criminal law sentences encouraging alternative kinds of detention for minor violations[23] and an ambitious program to guarantee the health of people subjected to legal restrictions in segregating communities, from the prisons to the other and not less problematic forms of internment. I was naked and you clothed me, I was sick and you visited me, I was in prison and you came to me[24]


* Professor of History of Religions at the University «Magna Graecia» of Catanzaro.

[1] A detailed cartography available on http://www.worldometers.info/coronavirus.

[2] Y. Chen, R. Woo, China Doctors Seek Tougher Discharge Criteria After Positive Coronavirus TestsReuters, online edition, 3rd March 2020.  

[3] G. S. Han, Nouveau-riche Nationalism and Multiculturalism in Korea. A Media Narrative Analysis, Routledge, London-New York, 2015. 

[4] A. Bendix, South Korea has tested 140,000 people for the coronavirus. That Could Explain Why its Death Rate Is Just 0.6% – Far Lower than in China or the US, in Business Insider, online edition, 6th March 2020. 

[5] Considering the above suspicion African hike, A. R. A. Shaban, D. M. Mumbere, Rolling Coverage of the Coronavirus Outbreak in AfricaAfrica News, 11th March 2020.

[6] Official statement on http://www.who.int: “WHO Characterizes COVID-19 as a Pandemic”, 11th March 2020. 

[7] Y. Gostoli, Six Immates Die as Prison Riots over Coronavirus Rules Grip Italyal Jazeera, online edition, 9th March 2020; Z. Tidman, Italy Prison Riots: Six Die Amid Protest over Coronavirus RestrictionsIndependent, 9th March 2020. 

[8] M. Mafai, Perquisizioni, vetri divisori, quant’è difficile essere la madre di un brigatistala Repubblica, 11th February 1981. 

[9] DPCM, 4th March 2020 and DPCM, 8th March 2020, DPCM 9th March 2020, available on http://www.gazzettaufficiale.it.

[10] G. D. Caiazza, Emergenza sanitaria: in via di definizione il Decreto Legge relativo alle misure eccezionali nel comparto giustizia, in http://www.camerepenali.it, 8th March 2020. 

[11] C. Melzi D’Eril, G. E. Vigevani, Coronavirus: il decreto tra obblighi, divieti, raccomandazioni e semplici consigliil Sole 24 Ore, 8th March 2020.

[12] A raucous but concise reconstruction in G. Cavalli, Irresponsabili, presuntuosi e incapaciLeft, 9th March 2020.  

[13] A predictive lecture about this faded conception of politics was advanced, in the public law field, by L. Ventura, Il governo a multipolarità diseguale, Giuffrè, Milano, 1988. 

[14] S. A. Dudoignon, The Baluch, Sunnism and the State in Iran. From Tribal to Global, Oxford University Press, Oxford-New York, 2017, pp. 180-181. 

[15] S. Alasti, Juvenile Death Penalty in Islamic Countries: the Road to Abolition is Paved with Paradox, in P. Hodgkinson, Capital Punishment: New Perspectives, Routledge, London-New York, 2013, pp. 73-74. 

[16] M. J. Fischer, Legal Postulates in Flux: Justice, Wit and Hierarchy in Iran, in D. H. Dwyer, ed., Law and Islam in the Middle East, Begin & Garvey, New York-Westport-London, 1990, pp. 115 ss. 

[17] K. Zraick, What to Know About the Death of Iranian General Suleimani: The Killing of the Powerful General in Baghdad Could Have Drastic Consequences around the World, in New York Times, 6th January 2020.  

[18] D. Pulitanò, Diritto Penale5, Giappichelli, Torino, 2013, pp. 573 e ss. G. Zagrebelsky, Amnistia, indulto e grazia. Profili costituzionali, Giuffrè, Milano, 1974; V. Maiello, Clemenza e sistema penale, ESI, Napoli, 2007. 

[19] Specifically considering the religious background of Western constitutionalism, C. J. Friedrich, Transcendent Justice. The Religious Dimension of Constitutionalism, Duke University Press, Durham, 1964. For an interesting overview of the American legal system on religions, K. Greenwalt, Secularism, Religion and Liberal Democracy in the United States, in Cardozo Law Review, 2009, pp. 2383-2400. 

[20] M. Ascheri, I diritti del Medioevo italiano: secoli XI-XV, Carocci, Roma, 2000, pp. 234 ss. 

[21] Especially mentioning even the different theological context, E. Corecco, L. Gerosa, Il diritto della Chiesa, Jaca Book, Milano, 1995,pp. 94-95. 

[22] M. Ventura, Pena e penitenza nel diritto canonico postconciliare, Edizioni Scientifiche Italiane, Napoli, 1996; R. Botta, La norma penale nel diritto della Chiesa, il Mulino, Bologna, 2001. 

[23] The same suggestion was largely extractable in European Court of Human Rights, Torreggiani and others vs. Italy, 8th January 2013. 

[24] A reference to Matthew 25, 36 (English Standard Version). 

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