FECL 27 (September 1994):

BERLUSCONI AND THE JUDICIARY: DEFINING THE NEW RULES OF THE GAME

Italy is in the midst of a power struggle whose outcome might result in a re-definition of the rules governing the relationship between politics and economics and of the role of the Judiciary. In the "new" Italian right's striving for deregulation, there is no room for traditional mediation. The government of Silvio Berlusconi is aiming at reducing the capacity of law to control and govern social relationships, Massimo Pastore, the author of this contribution, suggests. His analysis raises a disquieting question: Is the Italian experiment setting a precedent for the rest of Europe?
Massimo Pastore, Ph.D. in criminology at the university of Turin, works as a lawyer. His contribution is largely based on the text of a paper prepared together with Guiseppe Mosconi, ass. Professor of Sociology of Law at the University of Padua, for the XXII Annual Conference of the European Group for the Study of Deviance and Social Control in Komotini (Greece), in August 1994.

 

The first political elections held in Italy after the beginning of the various investigations for political corruption known as the "Clean Hands" operation have been a source of many surprises both in Italy and abroad. The two main ruling parties of the past (the Christian Democrats and the Socialists) disappeared or drew only little support, divided as they were among different new parties with new names. The progressive coalition confronting the right-wing alliance was defeated.

The new government, chaired by Silvio Berlusconi, is the result of a quarrelsome alliance between the traditional (post-)fascist party (Alleanza Nazionale) and the main political protagonist of the Italian "revolution" (the Liga) gathered under the aegis of Mr. Berlusconi and his Forza Italia label, a political aggregation created just a couple of months before the elections which could rely on the many organisational resources of Berlusconi's private enterprises for paving the way to success. Indeed, it is commonly well-known that Mr. Berlusconi is the owner of the three main private national tv-channels and that he controls a huge share of the information system and of the advertising market. Moreover, he owns a multitude of economic groups operating in almost every sector of the private market.

The personal story of Silvio Berlusconi as such is extremely significant of the way in which the Italian "revolution" ended up. He was indeed one of the great private allies of the old political parties (mainly, of Bettino Craxi's Socialist Party), under whose protective wing he was able to make a fortune. When his protectors fell into disgrace, the entrepreneur Berlusconi decided to become a politician himself, with the declared aim of winning the elections, to defeat the danger of a victory of the left, and to run a new government taking the leading role in the right-wing coalition.

Thus, the very figure of Berlusconi embodies the substance of the change that occurred in the Italian political system: in a sort of extreme evolution of the previous system of hidden interconnections between private and public interests which was at the core of the Tangentopoli (roughly: "The City of Bribes") cases, the entrepreneurs directly assumed the reins of government in an attempt to get rid of the hindrance of political mediation. For this purpose, they took advantage of the fall into discredit of politics as such. This discredit was the result of the propagation of negative stereotypes favoured by the lack of a wider approach than mere criminalisation to the problem of political corruption.

 

Politics and economics in the City of Bribes

The very core of the illegal activities revealed in the Tangentopoli cases lies in the hidden transfer of public money to the parties' (or single politicians') hands, through the mediation of private entrepreneurs.

Indeed, the politicians' role in what has been called the "protection agreements" consisting in guaranteeing the private entrepreneurs involved access to public contracts, by bypassing the rules of fair competition. The entrepreneurs in their turn used to pay politicians for their favours and for maintaining their privileged position, by giving them bribes whose amount was previously fixed as a part of hidden agreements.

Although private entrepreneurs have, as a rule, protested that they were victims of a system of extortion planned by the ruling parties, they were in fact merely paying, as a sort of cost of production, part of the overprice they could get as a consequence of the hidden agreements. Indeed, in such a way the bribes were actually paid with public money.

Thus, both the politicians and the entrepreneurs benefitted from this system, at the expense of public resources: the first, by illegally financing the tremendous costs of their parties' structures and activities, evermore devoted to the mere preservation and reproduction of their own power; the latter, by maintaining an oligopolistic position with respect to the generous profits assured by public contracts, without carrying the costs and risks imposed by the market's rules.

The interconnection achieved in such a way between the private and the public sphere was so close as to reveal how ambiguous their respective roles may become. Indeed, while the politicians officially played a public role, unofficially their activity was much more dominated by a self-interest logic in so far as their private interests became prevalent to the public ones. On the other hand the entrepreneurs, while officially playing a private role, unofficially became an essential part of the public sphere in so far as their power of corruption was ever more able to influence public choices.

The system collapsed when on the one hand the hidden costs of politics became too high to continue financing them with the public debt, and on the other hand it became clear that the political and the economic system were both prevented from developing by the logic of a system which merely aimed at self-reproduction, leaving no room for any possibility of change. The problem, in other words, was not corruption: it was corruption as a sclerotised system of power.

Besides internal reasons, some strictly related external factors appear to have favoured the crisis and the subsequent change: from this point of view, the Clean Hands operation may be read as an attempt of "modernisation" of an Italian system of relationships between politics and economics which could no longer compete with the new objectives set up by the process of European integration and, to a large extent, by the end of the East-West economic and political competition.

We should not either forget that in Italy the end of the Cold War favoured the emergence of a deep "legitimacy crisis" of the traditional parties and opened the possibility for change in what used to be a "blocked" political system: indeed, so far, the fight against the "communist threat" had been the most powerful ideological argument justifying the necessity for the dominant parties to maintain their power at any cost.

With this argument no longer valid, it all of a sudden became possible to discover that the Italian system of corruption was no longer functional in relation to the internal economic and social cohesion, as it was before, and to successfully claim for a change.

 

The "government of the judges"

The Italian revolt against politico-economical corruption has been largely lead by the judiciary that brought politicians and entrepreneurs to trial for their illegal agreements all around the country.

Since the beginning of 1992, when a local member of the Socialist Party was arrested in Milan in the act of putting a "small" bribe of just 7 million Italian liras in his pocket, the Milan inquiry has become the culmination of a crescendo of criminal investigations which finally led to the prosecution of the most powerful representatives and the top-managers of the main national enterprises, both in the private and the public sector.

On the one hand, this may be read as indicative of the judiciary resuming its function of control, in accordance with the principle of the separation and independence of the three state powers. On the other hand, the leading role assumed by the judiciary was clearly favoured by the weakness, if not the complete lack of legitimacy, of the legislative and executive powers.

In this context, the judiciary ended up assumin a role of substitution by occupying the power vacuum brought about by the crisis of the political system.

Such a role was in its turn fostered by the successes of some new protagonists on the political scene (mainly the Liga), that contributed to undermining the strength of the traditional political parties but were not able to become a real political alternative because they were blocked by being excluded from the system of hidden division of the public resources.

The role of the judiciary was then very well supported and emphasised by the mass media, an this in turn contributed to create a large political consensus around the judiciary's action, to the point that the judges have been legitimised as the main actors of the political change. The same magistrates appear to have consciously used the media in order to gain support for their action and to amplify the political effects of their inquiries. The most striking case from this point of view was the "Cusani trial", in which a single defendant was sent to trial as a symbol of the whole system of corruption: the entire trial was televised for many months and all the most important representatives of the old political system had to appear as witnesses, while being defendants for the same facts in other inquiries. A sort of telematic pillory for the ancien régime...

Neither the executive nor the legislative powers were able to intervene in a coherent way, as an increasing number of the politicians sitting in the old parliament were themselves involved in the trials. During a long period it was mainly, if not only, through the criminalisation of the politicians' behaviours that the transition to the emerging "second" republic was prepared. Thus, in the view of the public, the judiciary's intervention easily assumed the dimension of a general trial of the "first republic's" political class.

This favoured the spread of simplifications and stereotypes against the "old" regime and allowing no room for a more articulated historical and political analysis.

The power gained by the judiciary has thus extended so far as to give rise to alarm about the emergence in Italy of a "government of judges". It is certainly no mere accident that one of the most important items on the agenda of the new right-wing government has been how to reduce the power of the judiciary, while reinforcing that of the executive.

 

Beyond Tangentopoli: the new features of an old system

Instead of leading to a reconsideration of the role of the public sphere versus the private one, the Tangentopoli affair - due to the many limits inherent to the criminal/judicial approach - has finally produced a paradoxical result: the formerly hidden relationships between private and public interests, once freed of the undesired role of "the parties", have become open. A strong tendency is emerging to directly identify public interests with private ones, leaving no room for traditional (legal or illegal) mediation.

The personification of this tendency is of course the Prime Minister himself who, in the words of Massimo D'Alema (the acting Secretary of the PDS) has created the unprecedented new figure of "the entrepreneur who pays bribes directly to himself".

In conformity with the private-interest logic inspiring the new government, its policy has so far privileged interventions aimed at reducing the capacity of law to control and rule social relationships. This happened by adopting or proposing a series of "counter-norms", with the declared objective of ridding economic activities of the many hindrances produced by "too many rules" introduced by previous legislators. They range from public contracts (the new law adopted by the previous parliament in order to prevent corruption was promptly repealed) to procedures for hiring workers (a deregulation was decided that will greatly reduce the risks of hiring people without a regular contract and will "liberalise" contracts for unemployed and young workers); from illegal building (a wide amnesty was passed) to industrial water pollution (the infringements to the law have been de-criminalised), etc.

Following a similar logic, the same system of appropriation of the public machinery by the parties which was typically, although not explicitly, pursued during the "first republic", has been openly claimed as a right of the executive power by the new government, which clearly intends to get full control over all branches of the public domain by appointing new trusted friends to the seats of command. Significantly, much attention has been devoted to getting control of the three public tv-channels (RAI)...

Last but not least, the new government has recently taken its first steps in the field of criminal law, by passing (and then withdrawing) the well-known "Biondi decree" (named after the Minister of Justice).

 

Politics, economics, and the role of the judges: from the Biondi decree to the Di Pietro project

The very core of the law decree, passed with a suspicious haste on the same night as in the Italian football team was playing the World Cup finals, consisted in the attempt to restrain the possibility to send a defendant to custody on remand by tracing a dividing-line among different kinds of criminal offences: those for which prison on remand was still possible and those for which it was not any more.

The law-decree was presented and sustained by the Minister of Justice, and then by the Prime Minister himself in a series of apparently passionate interventions with a wealth of "gargantuistic" arguments in favour of the right of the defendant, of the necessity to warrant "fair trials" and against the "abuses" committed by the magistrates in applying custody on remand as a way of forcing defendants to confess their crimes. Mr. Berlusconi pathetically referred to both the UN and the European Convention on Human Rights, the necessity to put an end to the shame of Italy's prison overcrowding, the too many defendants waiting for trial in custody, etc...

Almost any advocate of penal reform could have subscribed to the Prime Minister's passionate appeals, if they had not sounded so false compared with the actual contents and scopes of the text of law they referred to.

Indeed, the text of the law-decree was clearly inspired by a class logic: the dividing-line between the two categories of crimes was in fact traced out with the aim of extending the defendant's rights in all the cases of economic and political criminality, leaving everything unchanged for the rest. Thus, the first effect of the new provisions would have been to hinder the many inquiries for corruption still going on, the most important of which was involving some top managers of Fininvest (the main enterprise of the Prime Minister) and no lesser then Mr. Berlusconi's brother who, in point of fact, was arrested shortly after the Biondi decree's withdrawal.

Furthermore, the tracing-out of such a "border-line" did not only mean weakening the public prosecution's arms with regard to certain crimes. As it usually happens in the field of criminal law, the symbolic value of such a step was even more important. In fact, the government's message was very coherent with its overall strategy and with the interests it represents: instead of proposing a general reform of custody on remand, the aim was to present certain crimes as less serious than others, trying in doing so to stop the wave of criminalisation and to counteract the most dangerous and lasting effects of the Tangentopoli period.

Significantly, the government's attempt failed in the end because of the reaction of the same actors who lead the "Clean Hands Revolution": the magistrates and the media, who revealed the very scope of the new rules by denouncing the fact that all the Tangentopoli crimes /corruption, illegal financing of political parties, fraudulent bankruptcy, and the like) were included in the list of offenses excluding custody on remand. The clamorous move of the group of Milan public prosecutors known as the "Clean hand pool", who dramatically threatened to resign in case the law-decree was passed - coupled with a plethora of tv-shots showing the most hated protagonists of Tangentopoli in the act of leaving prison as a consequence of the decree's provisions, provoked a wave of indignation against the government, accused of having passed the decree for saving their old friends from custody, for paving the way for Craxi's return from his golden hiding place in Tunisia, etc. As a result, the government was obliged to vote against its own decree when it was presented to the parliament...

Criminal law has thus become the privileged field of a struggle whose outcome will be decisive for defining a new balance among the three state powers and between politics and economics. As a matter of fact, the law decree was conceived and even openly claimed by the government as a necessary act in order to re-establish "normality" as opposed to the "super-power" acquired by the judiciary in the phase of "terror". The successful reaction of the magistrates confirmed the existence of an open struggle between the two powers: in obliging the government to withdraw its act, the judiciary succeeded in confirming its present strength and to make it clear that no political solution to Tangentopoli can be conceived in the near future without the magistrates' consent.

It was then Di Pietro - the most famous public prosecutor of the Milan "pool" - himself, who chose the stage of a big conference organised by the entrepreneurs for announcing that the magistrates of the Milan pool are almost ready to present their proposals for "get out of Tangentopoli". Not only did Di Pietro admit the necessity of a political solution and proposed to grant impunity to all those who confess their crimes and restore the money unlawfully obtained, but he went on calling for the setting up of clear new rules governing politics and economics, and the attribution to the judiciary of new strong powers of control over the properties of politicians and entrepreneurs, in order to prevent the resurgence of corruption.

The magistrates have not yet presented their proposals as a text of law. This will probably happen at a conference they intend to organise with entrepreneurs and academics. Politicians have not been mentioned on the list of invited persons...

The first anticipations of the project have been warmly welcomed by the entrepreneurs who regret the fact that after the beginning of Tangentopoli many economic activities have been stopped due to the uncertainty about the new "rules of the game". As for the politicians, the reactions are very varied. In any case, they appear to be dominated by the surprise about the new "alliance" between judiciary and entrepreneurs (which could be seen as a further demonstration of the overlapping between private and public interests and of the persisting crisis of the autonomous role of politics) coupled with the awareness that any opposition to the magistrates' proposals appears to be almost impossible in the current situation.

Whatever the precise content of the magistrates' proposal will be, we may easily foresee that for the future the domain of criminal law will continue to be the privileged field of a struggle in which the executive power will try to re-establish and extend its capability of control by reducing the power taken over by the judiciary. The "new" parties in power feel the urgent need to go back to the ancient times, when the criminality of the powerful was not the business of public prosecutors and criminal courts. Still, the "new" executive power is now hindered on its way by the same power of simplification and of stereoptyping inherent to criminal law that only a few months ago had been used by the winning coalition as one of the most powerful sources of its success in presenting the extreme evolution of the "old" political system as a "new" one. It is then possible that, for finding a way out of this dead-lock situation, the government will try to change its strategy, by moving from a line of open struggle against the judiciary (this was mainly Berlusconi's and Forza Italia's line) to a new line of "co-optation" of the magistrates in the government's choices (this is the line of the (post-)fascist Alleanza Nazionale, whose members have actually been in touch with Di Pietro before he launched his proposals). Moreover, it was Berlusconi himself, who - unsuccesfully however - tried to convince Di Pietro to become Minister of the Interior when the new government was formed.

 

Contact: Massimo Pastore, Via Botero 17, I-10122, Torino, Italy; Tel: +39/11 543479; Fax: +39/11 533162