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Monday, May 12, 2003

Italy and Tragic Pantomime

Reflecting my feeling that the moment of truth is -albeit gradually - approaching, I will be posting a little more on Italy, as and when I can find relevant and interesting material. Many eyes, rightly, are focused, on Germany right now. My own feeling is that Italy's problems are, if anthing, worse, and that, given the existence of 'fundamental instability' on the management side (remember the tug of war on 1 January 2002 even to get the euro issued there) we should not be too surprised to see sudden and dramatic changes coming at us over the horizon. For the moment Berlusconi is promising the Italian voters a growth renaissance in 2004, in his case absent the 'massive tax cut' since public finances do not permit even this. The issues raised in this article below are more fundamental, relating as they do to the basic pillars of the democratic system. Looked at from Spain, perhaps the greatest weaknesses of the new style 'mediterranean' democracies appear to be the absence of an independent and non-interest-driven critical press, and the politicisation of the judiciary. As the writer notes this may seem fine when the objective seems emminently 'politically correct' (for example Garzon with Pinochet), but this should not blind us to the dubious virtues of judicial systems in the hands of a tit-for-tat political process.

The pantomime that is Italian politics has become more lively lately, with its leading man, Silvio Berlusconi, putting in a command performance as the persecuted and much misunderstood hero. Attacking the villains (the "red judges" and "communists") with one breath, appealing to his public audience with the next, the showman dazzles with alternate flashes of anger and expressions of innocence. But the farce is rapidly descending into tragedy. Politics in Italy have often been described as theatre; but this time the antics on stage risk spilling over, with serious consequences, into the real world.

The plot is complex. Act one: in the early 1990s, the Italian political class and most established parties collapsed in the face of a judicial onslaught on systemic corruption. Since the late 1940s, all Italian parties had engaged in a complex game of collusion, funding their activities from tangenti, or bribes, from public and private sector companies. The Communists, who comprised the permanent opposition, were not exempt from such practices. In spite of frequent protestations to the contrary, all politicians from that era either actively engaged in, or knew of, these nefarious activities. But if politics was anomalous in Italy, so too was the judicial system. Since the late 1950s, the judiciary has enjoyed great autonomy from the executive; it is self-governed by a constitutionally-mandated Higher Council. Italy is the only democracy in which the same corps of independent career magistrates performs both judicial and prosecuting functions. Powers of investigation and prosecution were strengthened during the anti-terrorist drive of the 1970s and early 1980s and to combat organised crime. By the 1990s, Italian judges could operate like a highly-trained guerrilla force in taking on the might of the corruption-ridden Italian state.

As Mr Berlusconi never fails to point out, in Act two, staged during the past decade, the democratic function of the judges became problematic. While becoming a power in its own right with control over the activities of politicians, after the 1970s the judiciary had also become highly political as its own ideological factions closely mirrored and interacted with party organisations. After 1992, the charisma of particular judges, their elevation to star status by the media and their zeal in prosecuting criminal cases contrasted with the gross inefficiency of the judicial process, especially in civil actions, which makes Italy the most frequent offender in the European Court of Human Rights. While political attacks on the judiciary by the present government have been censured by the United Nations human rights committee, so too has the practice, frequently employed in the tangentopoli prosecutions, of holding offenders for lengthy periods in preventive detention and reliance on the testimony of defendants. Most damaging for the integrity and legitimacy of the judiciary has been inattention to the rights of the accused (a notification of investigation by a prosecutor is often interpreted as a guilty verdict) and the failure to develop a sound rights-based legal culture.

Act three: Mr Berlusconi returns to power and expends much of his energy combating a series of outstanding indictments. He could be found guilty in the cases brought against him. But the inquisitorial tendencies of Italian judicial culture and the undeniable and strong links between the judges' ideological factions and political parties give him plenty of ammunition to rebuff the charges, claiming political persecution. The parlous state of the judicial system and the chronic inefficiency of criminal and civil procedures means that many Italians (at least in the centre and on the right) support and sympathise with him. Italy, it seems, cannot escape its past and move on. The main reason is rampant politicisation. Mr Berlusconi is a politician tainted by involvement in the politicised economy of the pre-1992 republic; justice, in his case, should clearly be seen to be done. But no matter how worthy and dedicated to legal rectitude, the judges pursuing him are also afflicted by the politicised nature of their profession.Since the mid-1990s, plans to reform the judiciary, separating the careers of prosecutors and judges and giving greater jurisdiction to the minister of justice - both measures that would help improve the accountability and legitimacy of the judges - have been defeated by partisan divisions. Similar reforms introduced under Mr Berlusconi are delegitimised by his ongoing entanglement with the law. The system is blocked, and the political class is powerless to respond. The pantomime goes
Source: Financial Times

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