Italy is right to curb its politicised judges

Enduring Silvio Berlusconi’s behaviour last week was like “sitting through a film you’ve seen before”, said Senator Anna Finocchiaro, the parliamentary head of Italy’s Democratic party. Not two months after starting his third stint as prime minister, Mr Berlusconi is in a familiar controversy.

The Senate is finishing work on a package of security laws on which Mr Berlusconi campaigned. An amendment added by his supporters and passed on Wednesday would suspend trials for all but the most serious crimes that took place before mid-2002.

Bild: Carabinieri

This will help focus the state’s limited resources on a wave of violent crime that has alarmed the public. But that is not all it will do. It will also halt a trial in Milan that aims to discover whether Mr Berlusconi paid €387,000 ($601,000, £306,000) to his lawyer David Mills, the estranged husband of Tessa Jowell, UK Olympics minister, to give false testimony in a court case a decade ago. (Both men deny wrongdoing.)

Mr Berlusconi believes he is being singled out by judges on the “extreme left”. This week he requested that the judge presiding over the Mills trial be removed, on the grounds that her outspoken attacks on his policies reveal her as too biased to render a fair judgment. (His request was rejected.) He announced that he would seek a law providing immunity from prosecution for high-ranking members of the Italian government. Magistrates have complained that Mr Berlusconi’s moves will cause “irreparable damage to the rule of law”.

It is not obvious that they are right. Spain, France, Germany and the European Union all have some version of immunity. Italy, too, had an immunity for parliamentarians until it was abolished in 1993, amid a series of anti-corruption prosecutions. Mr Berlusconi’s backers passed an immunity law in 2003 but the constitutional court voided it the following year, arguing (reasonably) that it would violate equality under the law and (absurdly) that it threatened the “right” of citizens to confront their accusers – as criminal defendants. Such laws can be abused. Pablo Escobar, the cocaine baron, notoriously avoided prosecution in the 1980s by getting elected to the Colombian Chamber of Representatives. But in many cases immunity prevents as much damage as it permits.

The purpose of immunity is not to give elected officials a free ride. It is to protect the right of electorates to be ruled by the person they chose democratically. Do the charges against Mr Berlusconi arise from a disinterested quest for justice or from a desire on the part of a certain branch of the Italian elite to overturn a popular choice they do not like? Such questions can almost never be answered to the public’s satisfaction. In the US in the 1990s, President Bill Clinton was subjected to one investigation after another. It turned out to be just as important that the judiciary be above the taint of politics as that politicians be above the taint of corruption. Immunity might be the best way to protect the democratic elements of democratic government – especially in a country where the judiciary is highly politicised. The US remains such a country.

So does Italy, where, for a decade and a half, judges have enjoyed a degree of power unique in the west. In the early 1990s, when Italians came to feel they no longer needed to tolerate the graft that had been a regular part of cold war politics, ambitious judges toppled the leadership of the main parties in corruption trials. Italy’s post-cold war purge was more thorough than that of many communist countries. There was, in effect, a judicial regency over elected officials, with judges getting to vet the leadership class of the next generation.

Such power is, over the long haul, unhealthy for a democracy. It is one of the reasons Italians have come to distrust their judiciary. A poll published on Thursday in La Repubblica, a prestigious Roman daily that opposes Mr Berlusconi, showed just a third (35 per cent) have faith in the judicial system, versus 59 per cent who do not. Mr Berlusconi’s voters are overwhelmingly distrustful of judges and his opponents are mostly satisfied with them. What is striking is that the centrist voters in Italy’s Christian Democratic remnant, the opposition UDC, favour Mr Berlusconi’s plans to suspend trials by 69 per cent to 30 per cent. As La Repubblica put it, Italians “think that justice is working poorly. And if the price [for fixing it] is some kind of judiciary ‘immunity’ for Silvio Berlusconi, they are willing to pay it.”

A Bleak House-style backlog of cases is the weak spot in the Italian judiciary’s legitimacy. Italian law is so dilatory that it butts up against article six of the European Convention on Human Rights. In place of fast trials, Italy has the so-called “Pinto law” of 2001, to compensate people whose court cases drag on. Sir John Major was in power in Britain the year the Berlusconi-Mills trial began. The allegations against which Mr Berlusconi was fighting when the last immunity law was overturned in 2004 dated from 1985. When Mr Berlusconi’s foes warn that 100,000 untried cases would be frozen because they are more than six years old, they are unwittingly making the case for the law, not against it.

Mr Berlusconi’s judicial stunts are invariably self-serving, but they are never only self-serving. They always address some genuine problem severe enough to rally voters behind him. Therein lies his political genius. Italy is in a panic about crime right now. That panic might be well founded, or it might not be. But almost everything in his security law will help allay it. An immunity law, should one be drafted, might make Italian politics less litigious and more democratic. The fact that Mr Berlusconi could dodge a trial through these laws is a reason to oppose them. But it is the only reason to oppose them, and it is not a sufficient one.

The writer is a senior editor at The Weekly Standard

By Christopher Caldwell