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Which Way Now for Berlusconi?

Berlusconi expulsion vote

What should be a definitive vote on whether or not to remove Silvio Berlusconi from Italy’s senate should happen at some time in mid-October. Indications are that ex-Italian prime minister Berlusconi, should be kicked out of Italy’s senate on account of his tax fraud conviction.

In the meantime, a series of mini-votes will happen as a senate commission examines and discusses Berlusconi’s case. On the face of it, the situation is clear: Berlusconi has been convicted and the law says he should be removed from Italy’s political scene for a period of up to 6 years. In practice though, threats to bring down Italy’s government if Berlusconi is stripped of his senate seat are causing an enormous kerfuffle here in Italy.

Locked away in his luxury villa on the outskirts of Milan, Berlusconi is reportedly mulling over the options open to him.

These are the directions Berlusconi could take:

1. Resign – this would bring many problems to an end and may well help re-stabilize Italy’s wobbly government. But Berlusconi does not seem to want to go down this route which would probably put an end to his PdL party and would mean he would have to take a sideline role in Italy’s politics, not that his role has ever been that active. Berlusconi participated in less than 1% of 1231 electronic voting sessions in Italy’s senate according to the OpenPolis website.

2. Wait – there’s a possibility the definitive vote in Italy’s senate may be in his favour as certain opposition members may decide to save him for the sake of the stability of Italy’s government. If this happens though, some 74% of Italians who believe Berlusconi should be stripped of his senate seat will not be happy, so while Italy’s government may save itself, public disorder may occur, and that’s not to mention lowering the already rock bottom levels of credibility of Italy’s political classes to less than zero. Saving Silvio would also potentially damage the left leaning PD party, perhaps irrevocably in the eyes of voters.

Berlusconi is not sitting on his hands though, he is exploring as many options as he thinks exist. One such option is a great escape from Italy.

3. Leave Italy – Berlusconi is nearly 77, and the situation is apparently taking its toll on him physically and mentally, if you believe what you read in Italy’s press. Fleeing Italy, which would make him a fugitive from Italian justice seeing as his passport has been confiscated, would mean an end to Italy’s Berlusconi-related troubles, but Berlusconi does not want to be seen as another Craxi – an ex-Italian prime minister who ran away from Italy to escape justice.  Though escape is not an option Berlusconi wants to consider, it is an option he and his people are examining – just in case.

4. Bribe his way out of trouble. While risky, and not an option which is being reported publicly, this is something he’s been accused of doing in the past. Berlusconi might be considering which senators are likely to be receptive to offers of financial assistance and other presents in return for a favourable vote in Italy’s senate. If attempts to buy favours are occurring, they are probably being made now.

5. Amnesty. There’s a slim chance that a pro Berlusconi law could be proposed and passed to render Berlusconi’s conviction for tax fraud null and void. The time for this to happen is running out though, if it has not run out already.

6. Pardon. Italy’s president Napolitano could conceivably pardon Berlusconi, but before this happens, Berlusconi has to ask for a pardon and this would constitute an admission of guilt. Berlusconi has been maintaining his innocence, despite the findings of three levels of justice. The pardon option is a very remote possibility and the time for a pardon to be issued is running short.

7. Do time – Berlusconi’s 4 year sentence has automatically become 1 year. This year won’t be spent in prison and is more likely to be either a period of house arrest or community service: which of the two is not yet known.

By serving his sentence, Berlusconi could act as a model “prisoner” and this may open the door to either an amnesty or a pardon. However, being required to do community service or being forced to stay in his home for around a year would prove embarrassing to Berlusconi who would be seen to have been beaten by Italy’s justice system.  If Berlusconi does choose to accept his punishment, he’ll strengthen the case for stripping him of his senate seat, as he will be accepting that he is guilty. This is something he wants to avoid.

8. The ‘Molise Option’. The ex-governor of Italy’s Molise region, Angelo Michele Iorio, a Berlusconi PdL party member, is also facing the effects of the same law as Silvio Berlusconi after the ex-governor was sentenced to a 6 month jail term for abuse of office. Iorio is attempting to have the effects of the so-called Severino law which bans convicted politicians from holding public office annulled on the grounds that the crime was committed before the law came into effect.

Berlusconi’s people are also arguing that the Severino law is not applicable to Berlusconi because it came into effect after Berlusconi committed the crime, so applying it to Berlusconi’s case is unconstitutional. The outcome of the Iorio case could provide Berlusconi with an escape route.

Playing for time and waiting until the Iorio decision is known may be beneficial to Berlusconi’s future, but there’s always the risk that the Iorio case could go in a direction which would not be favourable. Then there’s the fact that one argument that the Severino law is retroactive and thus unconstitutional is weak. There’s also the Article 66 issue, which is examined briefly below.

The Severino law does not refer to when a crime was committed, it simply refers to the existence of a conviction. Berlusconi has been convicted.  The date of the crime is irrelevant, thus Berlusconi is subject to the force of the law.

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For those whose Italian is up to it, the text of the Severino law is here: LEGGE 6 novembre 2012, n. 190Search for ‘condannati’ – ‘convicted’, to find the relevant sections.

The Article 66 Issue

There’s another reason why the Severino law could be declared unconstitutional and it hinges, from my understanding, on whether the law goes against the principle in Italian law that parliament is supreme and its power cannot be exceeded by that of the magistrature. The Severino law would appear, it is argued by the Berlusconi camp, to go against the spirit of Article 66 of Italy’s constitution:

Article 66  [Qualifications for Admission]
Each chamber decide about the electoral admissibility of its members and about instances of ineligibility and incompatibility.

It looks as if the application of the law may remove the constitutional the right of Italy’s parliament to decide for itself whether or not Berlusconi is either ineligible or incompatible to continue to hold his senate seat or to be eligible for election in the future.

For those who know Italian, there’s some interesting analysis of the Article 66, supremacy of parliament over the magistrature question here: BERLUSCONI INCANDIDABILE?/ Il giurista: la legge Severino non può fermarlo, serve il voto del Senato

In very simple terms, it is Italy’s senate and Italy’s senate alone which can, at the end of the day, decide whether or not to remove Berlusconi from his senate seat. Arguably, the Severino law exerts undue influence on the senate, though the law was passed by Italy’s parliament, and this implies that at the time, parliament considered that in constitutional terms, the law was valid, unless Italy’s politicians did not appreciate the implications of the law they passed. If they did not, then this would call into question the competence of Italy’s politicians as lawmakers (many of whom are lawyers), but that is an entirely separate issue.

9. Threats to Bring down the government. Berlusconi has been threatening this for a while and it still may happen if he is stripped of his senate seat. The threat is real, and it may prevent him from losing his seat in Italy’s senate, though such a move would only really serve to delay the application of the law and it could have disastrous consequences for the future of Italy and of Europe.

Moreover, if the government is toppled now or very soon, it will mean the elimination of the IMU property tax Berlusconi pushed very hard for will not be formalized in time for the payment of the tax to be stopped. If Berlusconi does adopt the bring down the government tactic, he risks dropping himself and his party into IMU mire. In the event of elections, opposition parties would make a meal of Berlusconi shooting himself and millions of Italians very firmly in their feet.

Prior to the passing of a bill which ended the payment of the IMU tax for 2013, Berlusconi could have brought down Italy’s government. To do so now would not be at all wise. While it is impossible to be certain, it almost looks as if Berlusconi and his party have put themselves in a dead end of their own making by pushing for and passing the bill which approved the partial ending of the IMU tax.

Then there’s this somewhat surreal option:

The Estonia Solution

One other solution to Berlusconi’s woes, should he be kicked out of Italy’s senate, is that he may stand for election to the European parliament in another country, or so some MPs have been speculating according to a report in Italian newspaper Il Messeggero.

Estonia has been named as one such nation in which Berlusconi could propose himself as an election candidate. The argument goes that seeing as Estonia is not Italy, Italy’s laws which would end Berlusconi’s ability to present himself as a candidate would be circumvented.

In the, unlikely, event the Estonia solution becomes reality, the theory is that Berlusconi could use his influence at European level to tinker with Italy. There is a precedent too, only it did not work out too well for one Giulietto Chiesa who although ‘elected’ in Latvia – he was included in a list of candidates – he was not selected to be a representative in the European parliament. Chiesa’s political career fizzled out.

The Estonia solution is not likely to be a direction Berlusconi will take, but you never know!

Keep Berlusconi, Preserve Stability

Some think, despite his crimes and other pending court cases, which includes an accusation of the bribery of a senator, Berlusconi should be allowed to remain in politics for the sake of the stability of Italy’s government, even if this would do no favours at all for Italy’s credibility at international level.

The fly in the ointment of this argument is that Berlusconi’s personal legal tangles in themselves are a major cause of government instability and other court cases, if they go against Berlusconi, will also affect the stability of Italy’s government. They will also be used by Berlusconi and his PdL party as a way to meddle with proposed reforms which will only be accepted if they are seen to be Berlusconi friendly. Reforms which keep Berlusconi happy won’t reform Italy.

Really, in the opinion of this Italy observer, Italy would be far better off without Berlusconi, and in the long term, the nation’s government would be more stable if he were to be stripped of his senate seat.

While Italy waits for the definitive vote on Berlusconi’s senate future, attempts will continue to be made to convince others that Berlusconi should be allowed to remain in Italy’s parliament.

The windows of opportunity for Berlusconi do seem to be closing one by one, and his political future is looking ever more uncertain. This, however, is Italy, so anything can, and probably will, happen. Berlusconi won’t be out until the final bell has tolled and there’s still a way to go before this happens, if it does.

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