Newsgroup: it.politica
Titolo: Italy is right to curb its politicised judges

http://www.ft.com/cms/s/0/5dbb0ccc-3ec8-11dd-8fd9-0000779fd2ac.html
Italy is right to curb its politicised judges
By Christopher Caldwell
Published: June 20 2008 18:47 | Last updated: June 20 2008 18:47
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. 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, Ł306,000) 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?wherethejudiciary 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
More columns at 
www.ft.com/caldwell
 

 The writer is a senior editor at The Weekly Standard
And I would like to stress: senior.
Yours faithfully