Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
8 October 2009

Berlusconi + Zuma = Politicians

Silvio Berlusconi, the Prime Minister of Italy is, shall we say, a colourful character. In recent months his wive decided to divorce him after evidence of his philandering ways – allegedly with prostitutes and at least one rather young woman – surfaced. He has been twice re-elected by the Italian voters who seem to be no brighter or more worried by ethical lapses than their American and South African counterparts.

The 73-year-old has been dogged by legal challenges. He has been brought to court on charges of corruption, bribery, false accounting and illegal party financing but has always either been acquitted or won on appeal. In many cases time simply ran out under Italy’s statute of limitations. But the Italians seem to like him – perhaps because his companies control much of the Italian media and few Italian media outlets do anything but sing his praises. In that respect much of the Italian media is about as objective as the SABC on an off day.

After Mr Berlusconi won re-election in 2006 he decided that it was better to be safe than sorry and had legislation passed which attempted to indemnify the Prime Minister and the three other top politicians from prosecution while in office. Yesterday Italy’s top court declared this law invalid. As the Times of London Reports:

The 15 judges returned a majority decision, rejecting the legislation because it violated the Italian constitution on two grounds: first, it had not been subject to the greater scrutiny of constitutional procedures; second, it violated the principle that every Italian must be equal before the law.

Mr Berlusconi’s legal team had argued an Animal Farm defence, claiming that his unique duties as Prime Minister meant that he was “first above equals”. They argued that the law was necessary to prevent lawsuits distracting the most senior officials in the country from their electoral duty.

Now the billionaire politician will again face a series of trials for fraud, corruption, tax evasion and bribery. The court’s ruling on constitutional issues is final and there can be no appeal.

The Opposition called on Mr Berlusconi to step down as Prime Minister but, speaking in front of his palace in Rome last night, he vowed to carry on. “The Constitutional Court is a political organ. The trials against me are a farce. Viva Italia and Viva Berlusconi!” he said with a clenched fist. He added that the court, the head of state and the media all favoured the Left. “I will go on. We must govern for five years, with or without the law. I never believed because with a Constitutional Court with 11 left-wing judges, it was impossible that it would be approved.”

Sounds familiar doesn’t it. Did I hear the name “Jacob Zuma” mentioned anywhere? Of course, in South Africa the NPA dropped the charges against then Mr Jacob Zuma before he was elected President of the country, so it was not necessary to pass legislation to try and indemnify the President from prosecution.

There was a good reason why the NPA dropped the charges in a manner that might well have been unlawful, as the passing of legislation to indemnify Mr Zuma from prosecution would also most probably not have passed constitutional muster.

I am almost certain that if a similar law were to be passed in South Africa it would also be declared invalid and that a constitutional amendment would be required to indemnify the head of state. Such an amendment would fundamentally undermine an aspect of the Rule of Law – that no one is above the law – and would have to be passed by a 75% majority in the National Assembly.

Like Mr Zuma and his supporters (remember Gwede Mantashe called the Constitutional Court judges counter-revolutionaries when it ruled against Zuma),  Mr Berlusconi is now also attacking the media and the courts. Its the oldest trick in the book. If one does not want to address the substantive issues and if one wants to garner sympathy from the public,  one attacks those who point out the uncomfortable legal realities and awkward facts that suggest one has a serious case to answers.

It worked in South Africa and it may still work in Italy. Nevertheless, I am rather enjoying the Berlusconi spectacle as it serves as a reminder to the Afro-pessimists among us (to parahprase former President Thabo Mbeki) that the kind of abuse of power and undermining of institutions that we have seen in the run-up to the Zuma election is not an “African thing”. Rather, it is a “politician thing”. It has nothing to do with either the race of the politician or the continent he or she operates on, but rather with the ways in which charismatic leaders who yield considerable power (with the assistance of a largely friendly media) may turn themselves into victims to protect themselves from criminal prosecution.

Only time will tell whether either the Italian or South African criminal justice system will survive the turmoil that necessarily accompanies the prosecution of a sitting leader or whether either system will be damaged beyond repair.

Maybe its time for a little holiday in Italy. Sounds as if I will feel right at home there.

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