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Berlusconi Tries to Pull a Fast One

July 24, 1994

By a crushing 418-33 vote, the Italian Parliament has nullified a decree by Prime Minister Silvio Berlusconi that sought to shield corrupt politicians from prosecution. Americans should applaud this vote even if, as we shall explain, American applause is constitutionally awkward.

The good news is that over the past three years Italy has undergone a political cleansing the likes of which no one believed possible and indeed scarcely any other democratic country has ever seen. As a result of a protracted legal war on bribery, the corrupt Christian Democratic party, which had dominated Italian politics since the end of World War II, is in ruins; Bettino Craxi, a former prime minister, is a fugitive from justice in North Africa, and Berlusconi, a conservative media magnate billing himself as an untainted outsider, is his country's unlikely chief executive.

The recent bad news was that Berlusconi seemed more old politics than new politics after all. Italy permits the pretrial detention of those charged with crime, and the judges most admired for cleaning Italy's political house have used this tactic freely. It seems that the experience of detention among common criminals induces many a political fat cat to sing like a canary. Berlusconi's edict sought to eliminate pretrial detention for a long list of white-collar offenses, including, to Italy's dismay, bribery and corruption charges. The decree freed some 1,100 detainees overnight.

To become law permanently, however, Berlusconi's decree required confirmation by a Parliament in which his own party does not command a majority. When his coalition partners turned against him, he had no alternative but to announce the withdrawal of the decree later this week. But Parliament, in a stunning rebuke, refused to wait that long. Italy's is a parliamentary form of government, and the revolt in Berlusconi's ranks may yet jeopardize his very continuation in office.

The freed detainees may not go immediately back into detention, but Italians are clearly relieved that the basic law is back on the books. What makes the moment slightly awkward for Americans is that what Berlusconi extended as a privilege to some Italians is, for all Americans, a constitutional right. Article 1 of the U.S. Constitution guarantees every detained American the right to petition for an early hearing at which the government may be compelled to show cause for the detention. This "Great Writ" of habeas corpus has been called "the most important human right in the Constitution."

How then can Americans criticize Berlusconi? They can do so on the ground that whatever protections a democratic system offers against unlawful detention must be offered to all equally. By extending an "American" right selectively, Berlusconi bade fair to wreck Italy's system of justice without going nearly far enough to create an Italian version of America's. The Italians had every reason to stop him, and we are glad they did.

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