Thursday, March 21, 2013

Rule of the Law – Rule of the Outlaw

Yesterday consultations begin to see if it will be possible for Pierluigi Bersani or someone else to form a government. It is an arcane ritual dictated by the constitution in which all of the players in the political game and some of the former players are consulted. Leaders of minor parties, the Speakers of the two chambers an ex-President Ciampi went up to the Quirinal. Today it was the turn of the three big groupings and this evening or on Friday, we should know whether President Napolitano reckons that Bersani has a chance of winning a vote of confidence or whether he will ask someone else or whether we will have early elections.

In the meantime, there is a matter which colours the whole political scene, an issue which has been around since the early days of Bettino Craxi but like all chronic illnesses, it goes through acute phases and we are in a very serious phase at the moment. Are politicians above, below or just removed from the law…

On the day that former British cabinet minister, Chris Huhne and his wife Valerie Pryce were being taken off to serve 8 month gaol sentences for perverting the course of justice, the President of Italy said that the judiciary should not prevent Silvio Berlusconi from acting as the leader of a political party. The President’s admonition came immediately after Berlusconi had been given a one sentence for contempt of court in one case and after another court had sent the court’s physician to check his state of health after he pleaded conjunctivitis as a legitimate reason for not attending a summons.

The President is the titular head of the judiciary so is therefore supposed to act in their interest… or at least not against it. So it was very surprising to read the President’s statement last week expressing his concern at “the tension and contrast between politics and justice”. The comuniqué continued “It is understandable that the line-up that came a close second in the 24 Feb. elections is worried that its leader is guaranteed that its leader can adequately participate in the the complicated political and institutional phase that we are in” .

Like any democracy, Italy proclaims that it is governed by the rule of law and in every court, there is a grand proclamation “The Law is Equal for All”. Instead, the President admits that there is a contrast between “law”, the judiciary, and “politics” or rather one individual politician who has been prosecuted for a variety of offences and convicted on some (so far not to the third level of judgement).

Unlike any democracy, we have a former prime minister who came close to winning again last month who calls the judiciary “a cancer” and whose party secretary (a former Minister of Justice!) stages a protest in the Milan Palace of Justice along with a group of members of Parliament.

It was an extraordinary scene; these were not 1970s students or Red Brigades sympathisers or 1920s fascists with clubs and castor oil. But because it was Berlusconi and his supporters, the President felt he had to be somehow “even-handed”. It is an extraordinary position for the head of the judiciary which implies that politicians are equal to other citizens before the law.

One friend wrote last week: “Hopefully your next posting will look at Napolitano's craven statement yesterday essentially telling Italy's judiciary that Berlusconi has a right to be left alone for a while given how important he is to parliament. Incroyable!”

Only too believable; and as the days of judgement draw near, Berlusconi and his people (who are indeed almost a third of the population) are becoming increasingly desperate. The judgement in the “Ruby” trial (under age prostitution and abuse of power) has been put off but only for a matter of weeks while the other immediate problem for him, the De Gregorio case where he is accused of bribing a senator to change sides and bring down the 2008 Prodi government has been put on the normal track instead of the fast track. There are others and the noose is closing – not round his neck as he will not go to gaol if sentenced but a ban on holding public office is probable and Grillo has said that he would vote in favour of allowing Berlusconi’s preventive arrest.

His reaction has been to call for a demonstration on Saturday once again against overzealous judges and to make overtures to the PD to secure the Presidency presumably with an eye to delaying unwanted legislation and having literally a get-out-of-gaol card in the form of a presidential pardon.

Berlusconi has long complained that his cases were remote-controlled and timed to coincide with elections for maximum damage but he has so many prosecutions that one is bound to coincide with some elections. Instead, one of the reasons for withdrawing support from Monti’s government in December and provoking early elections was to have the campaign and vote before the Ruby verdict.

Not so much a rule of law more a rule of outlaw.

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