Waiting for the Verdict. Berlusconi contra Legem.

For the last month, the Berlusconi family paper Il Giornale has put a countdown on its front page (yesterday's left), a countdown to the hearing for the appeal to the Supreme Court in which Silvio Berlusconi's “Mediaset” conviction will be reconsidered. Berlusconi was convicted on tax evasion and accounting fraud charges first at the court of first instance, then confirmed on appeal. The Supreme Court cannot re-examine matters of fact so whatever verdict they give, it will be based on law alone. If they confirm the conviction then Berlusconi will have a four year gaol sentence, three years of which have already been amnestied and he would never serve the remaining year in gaol because of his age. More important is the five year bar on holding public office. This would not take immediate effect as his Senate seat would have to be considered by the Senate itself and voted on in order for him to lose it.

The hearing starts today and if there is a verdict, it will probably be handed down tomorrow or Thursday. The alternative is a postponement or some form of retrial.

The number just below Il Giornale’s masthead is not the only dramatisation of the case. Their headline yesterday made it very clear that the Court’s verdict is a national question and not one that concerns Senator Berlusconi. “Così le toghe della Cassazione 
giocano col futuro del Paese" (This is how the Supreme Court judges are playing with the country’s future). Pro- or anti-Berlusconi, no one is in any doubt that the verdict if the conviction is upheld will be a watershed.
There are immediate political repercussions and more longterm judicial and institutional consequences.

Politically a confirmation would through the two biggest government parties into confusion. Berlusconi’s own People of Freedom (PdL) is divided between hawks and doves playing good cop/bad cop. The hawks say that a conviction would be “an attack on democracy” on the curious ground that the votes of 10 million people somehow trump the rule of law. One of them even suggested that if the Supreme Court upheld the conviction, it would be the same as the Egyptian army removing president Morsi. They would like to bring the government down and go to immediate elections. The doves also maintain that Berlusconi has been persecuted but they, and Berlusconi himself present a “responsible” calm and “for the good of the country” will continue to support the government. If the conviction is maintained, there will no doubt be demonstrations and violent language but the PdL will not bring down the government.

On the other side, the Democratic Party (PD) risks bringing the government down because of its own internal divisions. A large portion of the party has been very unhappy in bed with the PdL. They fought a tough election campaign entirely against the PdL and Berlusconi and then found themselves in a coalition with "the enemy". Now if the conviction is upheld, "the enemy" will also be a convicted criminal and that could be too much for some to stomach especially as it is combined with other divisions in the party. But for the same reasons that the PdL hawks are unlikely to pull the plug, the PD dissidents are also likely to go on supporting what is after all “their” government “for the good of the country” and because the risks of snap elections are too great.

Then on the judicial and institutional side, there is the conflict between “politics” and the “the law”, a rift which opened up more than 30 years ago and which Berlusconi increased enormously. Not very deeply buried in the subtext of Berlusconi’s conviction last month in the so-called Ruby case (7 years in gaol and a life ban on holding public office) is a strong statement from the judiciary that they are an independent organ of the state and that their authority is not to be trifled with. Today’s Mediaset case is not only about whether Silvio Berlusconi was directly responsible for his company’s tax evasion and fraud, it is also about whether a politician and man of power and wealth is subject to the law.

As for the result, there are three alternatives.

The first is the confirmation of the conviction – the Supreme Court accepts the Court of Appeal’s verdict.

The second is an acquittal because of some flaw in the legal argument.

And the third is some form of postponement or retrial. If Berlusconi’s lawyers give up the statute of limitations (this hearing was brought forward from the autumn because by one calculation, the statute of limitations would have invalidated any action after 2 August meaning that Berlusconi would have been not guilty because there could be no verdict), then the court could allow a postponement. Or a different calculation of the statute of limitations deadline might allow both sides more time. There is also the possibility that the court might order a retrial because of procedural flaws. That would almost certainly mean that the statute of limitations would prevent a verdict being reached.

Nanni Moretti’s “Il Caimano” a thinly disguised account of the rise of Silvio Berlusconi and his hypothetical fall, ends with an apocalypse, riots and flames in front of the Palace of Justice. He got a lot right including the exact sentence for the Ruby case and the assault on the Court by the Berlusconi figure’s supporters but for the moment, whatever happens in Rome today, tomorrow or the next day is unlikely to start a civil war, thankfully; but the consequences will be farreaching nonetheless.

Constitutional Reform – the Creeping Summer Transformation of Italy

Italy’s summer lethargy is masking a radical change which if passed will unleash the country’s least attractive instincts and give them a constitutional validity – not far from almost any political initiative in Italy is the acceptance of weakly checked power and the desire to have someone take charge and solve the country’s problems.

At the moment a structural change to both the institutions of the constitution and its intentions is under way. If passed, these will complete the de facto changes which have happened over the last couple of years. All with almost no debate in Italy and none at all abroad. Over the last few days the Five Star Movement (M5S) has brought the issue to the top of their agenda and Il Fatto Quotidiano has launched a petition hoping to reach half a million signatures but for the rest, the heatwave (appropriately named Charon, the ferryman to the Inferno) seems to have stifled any discussion. As well as Charon is the fact that most of the issues are arcane and none will change the number of jobs available or the price of pasta, hence the general lack of discussion.

The first step is a bill, the DDL 813 passed by the Senate a three weeks ago which until the M5S filibuster, was due to go to the Chamber before the end of the month. It is a constitutional amendment which would make future amendments even easier. All codified constitutions are in some way “entrenched”; they are more difficult to change than normal legislation because constitutions should not be subject to the political fads and fashions of the moment. In Italy, an amendment at the moment needs to be passed by both houses twice with at least three months between the readings, a very simple and rapid process compared to most constitutions where the entrenchment is much deeper.

The present bill would change article 138 which regulates constitutional amendments. It would cut the three months to one and set up a bicameral commission which would act in a similar way to a constituent assembly following a tight schedule.

This is a government bill which is unusual. It is explicitly part of the government’s 18 month reform programme and includes a very tight schedule as part of the constitutional amendment. The bicameral committee set up by the amendment must be formed within 15 days of the law’s passage, if not the Speakers will appoint members, and the committee must start work within 30 days. This is also very unusual as constitutional amendments are normally excluded from emergency measures.

Prime Minister Enrico Letta hoped that the bill will be passed by the Chamber at the end of the month so that the two Chambers could re-pass it in early November and the commission will start its work before the end of November. This would be rapid for ordinary legislation, for a constitutional amendment it is supersonic. The M5S filibuster has probably delayed the first passage in the Chamber till September unless the government keeps parliament sitting in August.

This first amendment would then allow the substantial reforms to be passed rapidly. There are two elements in the reform proposals: the nature and relationship between the two chambers of Parliament and the nature of the state and government itself.

On the first score, no one seriously argues in favour of maintaining Italy’s perfect bicameralism where the two chambers have equal power. This flaw and potential wrench in the works has been pointed out since the constitution was passed in 1948 but it was only in February this year that there were different majorities in the Chamber and the Senate. The US is used to the concept of gridlock between the two houses, but a presidential system can deal with it – a parliamentary system which depends on the executive having the confidence of both houses, cannot.

Nor is there much explicit defence of the numbers of parliamentarians: 630 + 315, more than most comparable systems.

There could well be stalling tactics as some senators at least do not like the idea of reducing their powers while both houses are nervous about reducing their numbers.

The other suggestions are much more controversial.

There seems to be a consensus among government party leaders (Democratic Party (PD), People of Freedom (PdL) and Civic Choice (SC)) that the executive should be greatly strengthened either introducing a presidential system or more likely, something similar to the French semi-presidential system. They would at least like to see a directly elected head of state with the implication that the new president would have much greater legitimacy and therefore power.

The vision is still vague but their idea is to confirm President Napolitano’s de facto increase in power, to enhance it and enshrine it in the revised constitution.

Strictly speaking, Napolitano’s job is mostly symbolic but for two years now, he has been increasingly active in everyday politics and party issues. The reforms would make these changes constitutional.

Two weeks ago he admonished parliament not to support a no confidence motion against the minister of the Interior, Angelino Alfano. The week before the Supreme Council of Defence, an advisory body chaired by the president, issued a statement saying that Parliament had no veto on defence matters, in particular on the decision to purchase of 90 F35s. There was no protest from the legislature on either count.

Parliament has already been seriously weakened by the electoral system which gives party leaders the control over who is elected and who is not. Candidates do not campaign and have no link with any territory. They are beholden either to Berlusconi, Monti or Grillo or to the PD apparat.

In 1946-7 the Constituent Assembly drew up a document which gave the legislature the most power. They had just come out of 20 years of dictatorship so wanted to curb the executive. Today, Berlusconi or his successors, or the PD’s aspiring presidents are not going to be Mussolini but the damage which Berlusconi has wrought over the last 20 years and Napolitano’s inexorable slicing away at the legislature’s powers are cause for concern, a concern which is only shown by a few senior constitutional lawyers but no widespread debate.

Without a debate, the only hope is that other Italian vice, getting stuck in a bureaucratic swamp or that the government fall on some other issue.

Stably unstable

A week before Prime Minister Enrico Letta’s meeting with his British opposite number, David Cameron, I was at a meeting talking about some of the issues the two leaders might be discussing. Most of the meeting was about medium and long term issues like banking regulation, relations with Europe and Italian institutional reform but then the elephant in the room waved its trunk and woke us up: would there even be a Letta government by the time the two men met (very probably); would it last after Berlusconi’s Mediaset judgement due on 30 July if the Supreme Court confirms Berlusconi’s conviction (likely); would Letta last his planned 18 months to complete his reform programme (far less certain on both counts – the duration of the government and the completion of the reforms). The government did indeed last until the two men met.

So the next big shock will be next week when the Supreme Court hands down its judgement but these last ten days have been richly laced with events which show Letta’s fragility. Only one was strictly speaking a government matter and this in itself underlines that fragility – that non-government issues can threaten the government.

The threats come from two quarters. The most visible is of course Berlusconi’s People of Freedom (PdL) whose support Letta depends upon and which controls key ministries. Every time the Mediaset case is mentioned, a PdL hawk threatens a walkout of ministers and/or deputies and whenever one of their pet issues like the abolition of the IMU property tax on first houses or the increase in VAT comes up, they threaten to leave the government if the issue is not dealt with.

On the other side Letta’s own Democratic Party (PD) is so riven that there is the real possibility that one or other of the PD factions will bring the government down because they perceive an electoral advantage. No one has made these threats explicit but they do allow the rumours to fly.

Most of this is posturing as for the time being as no one either wants or can afford new elections or some other crisis. The huffing and puffing from the PdL will increase to paroxyms next week if the verdict goes against Berlusconi and from the PD will gradually increase as their winter congress draws near. But it will just be huffing and puffing unless some other factor comes into play.
The three this last fortnight have been serious enough and I will write a separate blog on each.
The first and only government-related issue was the purchase of 90 F35 fighter-bombers due to come into service in the 2020s. The left wing opposition and M5S are against them along with part of the PD but the High Council of Defence, a ministerial advisory body, declared that defence spending was an executive decision and no one in Parliament objected so the purchase plan continues. It will come back though.

Then there was the racist insult made by former Lega Nord (LN) minister and now one of the deputy speakers of the Senate, Roberto Calderoli against the minister for integration, Cécille Kyenge. The PD, the prime minister and the left (but not M5S) called on him to resign as deputy speaker, the PdL merely called on him to apologise; there was a strong division between the two government parties even if Calderoli is in neither but instead, Kyenge accepted the apologies and the crisis ended. Again, this is not the last racist remark from the LN.

Finally, and most serious for the government is the deportation of Alma Shalabayeva and her 6 year old daughter, Alma. They are the wife and daughter of Mukhtar Ablyazov, dissident Kazakh wanted by his own government but who has been granted asylum in the UK. Italian police took mother and daughter at the end of May and after holding them briefly, handed them over the Kazakh authorities who had a private jet waiting in Ciampino.
As the details of the operation come out, it is clear that serious irregularities were committed and almost certainly crimes. It looks very like a kidnapping and rendition operation. The minister of the interior, deputy prime minister and PdL secretary, Angelino Alfano has said he knew nothing of the operation. There are calls for his resignation: either he knew and was responsible for the rendition or he didn’t in which case he was incompetent. But the PdL threatened to bring the government down if he lost a vote of confidence so the PD voted solidly to support him after being admonished by by both Letta and President Napolitano. There is a lot more to be revealed about the Shalabayeva deportation and that is bound to put pressure on Alfano.

On top of these, a Milan court convicted three of Berlusconi’s friends and associates on prostitution related offences committed at his parties in Arcore. This was a separate bench to the one that convicted Berlusconi himself in the “Ruby” trial and so is further corroboration that the parties were not the “elegant soirées” that his defence argued. But scarcely a ripple reached Berlusconi or his (political) party. The fact that the former prime minister and some of his friends have been convicted of prostitution offences doesn’t seem to matter “because everyone is innocent until the final verdict”.

And for once, that “final verdict” will very likely be handed down next week and that will be the next storm.

The constitutional reforms have hardly been discussed so far even though they would revolutionise the whole structure of government; but they are another potential for division.

The wits have been saying that Napolitano appointed Letta because he is from Pisa and so could deal with precarious architecture; his government is certainly leaning but if it lasts even a thousandth of the time the Tower has been up, he will be doing well.